Abstract

This four-volume set introduces, on the management side, principles and procedures of economics, budgeting and finance; leadership; governance; communication; business law and ethics; and human resources practices; all in the sports context. On the marketing side this reference resource explores two broad streams: marketing of sport and of sport-related products (promoting a particular team or selling team- and sport-related merchandise, for example), and using sports as a platform for marketing non-sports products, such as celebrity endorsements of a particular brand of watch or the corporate sponsorship of a tennis tournament. Together, these four volumes offer a comprehensive and authoritative overview of the state of sports management and marketing today, providing an invaluable print or online resource for student researchers.

Copyright

All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.

Major League Baseball Trademarks and Copyrights are used with permission of Major League Baseball Properties, Inc.

MLB Intellectual Property Notice

Major League Baseball trademarks and copyrights are used with permission of MLB Advanced Media, L.P. All rights reserved. www.mlb.com.

About the Editors

[Page vi]

Linda E. Swayne, who joined the faculty of the University of North Carolina, Charlotte, in 1981, is director of the M.B.A. in Sports Marketing and Management program. She has served as president of the Charlotte Chapter of the American Marketing Association, the Southern Marketing Association and the Southwestern Federation of Administrative Disciplines. Swayne has written 11 textbooks. Her co-authored textbook, Strategic Management of Health Care Organizations, is in its fourth edition. She has published over 25 journal articles and scholarly papers and 30 case studies.

Swayne was editor of the Case Research Journal from 1998–2001. She serves on the Steering Committee for the Metrolina Health Initiative, chairing the Marketing Committee. Previously, she served on the board of directors of the C. W. Williams Health Center, the National Conference for Community and Justice (NCCJ), and the campaign board for the United Way of Central Carolinas.

Mark Dodds is an associate professor teaching sports marketing and sports law at the State University of New York (SUNY) College at Cortland. He holds a J.D. from Marquette University Law School (MULS), a M.B.A. with a sports management concentration from Robert Morris University, and a B.S. in marketing management from Syracuse University. While at MULS, he earned a Sport Law Certificate from the National Sport Law Institute.

His research area is focused on legal issues of sports, the use of sports in civic engagement, sponsorship activation, and sports brand equity creation. Dodds has published articles in journals, such as Marquette Sports Law Review, The Journal of Physical Education, Recreation and Dance, Journal of Sponsorship, International Journal of Sport Management and Marketing, and College Athletics and the Law.

Prior to arriving at SUNY Cortland, Dodds worked in the sports marketing industry for over 14 years. He lives in Cortland, New York, with his wife and two children.

Introduction

[Page vii]

The impact of sport on our world is tremendous. Sport unites people via mega-events such as the Olympics or the FIFA World Cup soccer tournament. Sport provides a vehicle for civic engagement like HIV/AIDS education in Africa by the Grassroots Soccer organization or the Susan G. Komen Race for the Cure events.

Sport teaches us about our political differences, such as the 1972 Munich Games massacre or the 1980 Miracle on Ice USA hockey team. Sport creates a passion within us as we become lifelong fans rooting for our favorite baseball team. Sport challenges people who have never participated in athletics to run a marathon. Sport offers a channel for companies to connect with their consumers to meet marketing objectives. Because of these reasons, sport management and marketing should be and is studied as an academic discipline.

Sport management degree programs have been available in the United States for almost 50 years. These undergraduate and graduate programs prepare students to work in the sport business industry in areas such as marketing, public relations, sales, facility management, information technology, law, media, event management, finance, economics, and athletic management. Not only has the industry become “big business” but the required skill set needed to succeed has become very specialized. This skill set includes a comprehensive sport management education with outstanding written and oral communication talents.

Not only has the skill set become focused but the industry can be segmented into various categories, such as professional sport, nonprofit organizations, governmental agencies, sporting goods and apparel companies, amateur sport organizations, scholastic sport organizations, intercollegiate athletic departments, and the fitness industry. Because the industry has become specialized, the foundation of knowledge needs to be as well.

In order to best prepare students to enter the sport industry, the Commission on Sport Management Accreditation (COSMA) lists seven Common Professional Component (CPC) topical areas that need to be covered within the content of a sport management degree program. The CPC areas include: social, psychological and international foundations of sport; management, including sport leadership, operations/venue/event management, and sport governance; ethics in sport management; sport marketing; finance, accounting, and economics; legal aspects of sport; and an integrative experience such as an internship or other capstone experience. These topics reflect a substantial commitment [Page viii]to a business-based curriculum within the sport management degree program and best prepares students for entry into the sport industry.

This encyclopedia offers academic support to the accreditation topical areas. This resource provides approximately 834 original articles to provide business-themed definitions and sport-specific examples to illustrate and explain the academic sport management context. Some topics have a narrow focus and apply to a specific common, professional component. For example, “Customer Satisfaction” is a detailed analysis of a topic specific to event management. However, most entries cover at least two topical areas, such as “Contracts, Vendors,” and are useful within event management and the legal aspects of sport. Likewise, “Activation, Sponsorship” is identifiable with sport marketing and event management.

Other topics are more general in nature and provide insight into many common professional component areas. The “Olympics” is a subject that touches on international foundations of sport, sport leadership, sport governance, and sport marketing.

The authors for this text come from both academic and sport industry backgrounds. These experts explain very complex issues in a simple manner. Because many writers have practical experience, the details provide a clarity that is very useful to the reader and include a sport-specific context that applies the theme in a familiar situation.

This encyclopedia was developed with the sport-management reader in mind. It is anticipated that academic instructors, students, and sport industry practitioners will use the information contained in the volumes. Because of the format, the text is applicable in both academic and practitioner worlds. Academic instructors will find the definitions provide an academic rigor needed within their programs. Students will use the reference to support their textbooks and establish an understanding of the more complex sport management theory. Sport industry practitioners will value the sport industry focus of the definitions that prepare the next generation of sport management professionals.

It is truly our hope that you find this text useful as the sport management and marketing industry continues to grow.

Jean-Patrick Villeneuve, Swiss Graduate School of Public Administration

Megan Villers, Youngstown State University

Travis Vogan, Indiana University

Johanna Wagner, New York University

Steven Waller, University of Tennessee, Knoxville

Patrick Walsh, Indiana University

Geoff Walters, Birkbeck Sport Business Centre

Clinton Warren, Eastern Illinois University

Nicholas Watanabe, University of Missouri at Columbia

[Page xxxvi]

Rebekah Watson, University of Missouri

Erianne Weight, Bowling Green State University

Warren Whisenant, University of Miami

Jon Welty Peachey, Texas A&M University

Andrew J. Whalley, Royal Holloway University of London

Erin Whiteside, University of Tennessee

Pamela Wicker, German Sport University Cologne

Dennis Wilson, Western Kentucky University

Nick Wise, Kent State University

Rahnl Wood, Northwest Missouri State University

Tai Ming Wut, Hong Kong Polytechnic University

Athena Yiamouyiannis, Ohio University

Srdan Zdravkovic, Bryant University

Chronology

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1403: Some form of soccer (“fote-ball” or football) is played in England as part of the celebration during a baptism ceremony, leading to a player breaking a leg. Several kings throughout the century attempt to ban the sport.

15th century: Stoolball is popular in England. A game played by defending a target by batting away a ball thrown at it, it is an ancestor of cricket, rounders, and baseball, and remains popular until the 1960s. Traditionally considered a women's sport.

1774: The word baseball appears in print for the first time, in an English children's book called A Little Pretty Pocket-Book. The word is used in reference to a game better known as rounders, which is highly similar to baseball in that a leather ball is hit with a round bat, after which the hitter runs around four bases in order to score points while avoiding being put “out” by a fielder.

1791: A bylaw of the town of Pittsfield, Massachusetts, prohibits the playing of baseball within 80 yards of the meeting house, in order to prevent broken windows. The game called baseball at the time was probably a modified form of rounders with major differences from today's baseball.

1827: The tradition of “Bloody Monday” begins at Harvard College, with a football game played between the freshmen and sophomore classes. Football at this time refers to many different variants, largely played on college campuses. All of them are vaguely similar to rugby, with simple rules and significant violence.

1834:The Book of Sports, published in Boston and written by Robin Carver, includes an early form of baseball rules that modify the rules of rounders by adding strikeouts and foul balls.

1839: A popular myth says that Abner Doubleday invented baseball in this year, but has since been disputed; though some form of baseball existed prior to 1839, and though none of Doubleday's writings or obituary mention baseball at all, the myth persists because it is the official story adopted by Major League Baseball long after Doubleday's death.

1845: Shane Ryley Foster publishes the first rules for baseball for the Knickerbockers, an amateur New York City baseball club. Modern baseball regulations developed from Foster's rules, and the Knickerbockers are the antecedent to the earliest professional teams.

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1861: The violent, bloody, mob-style football games are banned at Harvard College and many other colleges. “Kicking game” forms of football begin to replace them, resembling European football or soccer. Harvard adopts “the Boston game,” a version of football that allows players to carry the ball instead of simply kicking it, resembling modern American football.

1861–65: During the Civil War, the popularity of baseball is spread as soldiers from the northeast introduce it to Louisville, Kentucky; St. Louis, Missouri; Tennessee; Washington, D.C.; and other areas.

1862: The Oneida Football Club in Boston, Massachusetts, is the first American soccer club, still called football at the time. The word soccer eventually catches on toward the end of the century.

1863: The Football Association forms in London, England, formalizing the rules of soccer.

1865: Baseball's prominence is demonstrated when 20,000 fans attend the championship game at Hoboken's Elysian Fields, between the Mutual Club of New York and the Atlantic Club of Brooklyn.

1869: The Cincinnati Red Stockings are the first professional baseball team touring and recruiting players nationally, and playing local teams in their travels. The team's players enjoy their entire first year undefeated.

1869: The first intercollegiate football game is played, between Rutgers and Princeton Universities, using the manufactured inflated round balls recently introduced. The soccer game is played under the rules established by the Football Association in London, and Rutgers wins 6–4.

1875: The oldest high school football rivalry in the country begins, between the Norwich Free Academy and New London High School, both in Connecticut. Like many high school rivals, they play a football game at Thanksgiving every year.

1876: Walter Camp enrolls at Yale University and, first as a player and then as captain of the Yale football team, revolutionizes college football. Rules he proposes and introduces include reducing the number of players in order to focus on speed over strength, establishing the line of scrimmage and the snap from center to quarterback, and the down-and-distance rules. Over the next few years, college football makes its transition from a rugby/soccer variant to modern American football.

1877: The Wimbledon tennis tournament, the oldest of the Grand Slam tournaments, is held for the first time at the All England Club.

1881: Tennis's U.S. Open is held at Newport, Rhode Island, originally called the U.S. National Men's Singles Championship.

1887: The U.S. Open adds a Women's Singles championship.

1891: As tennis becomes more popular in France, the French Open is held for the first time, in Paris.

December 29, 1891: The first basketball game is played, invented by James Naismith as a teacher at the Springfield, Massachusetts, YMCA. The YMCA, and later the Army, are instrumental in spreading the game throughout the country.

1892: The first college football game is held between the Tar Heels of the University of North Carolina at Chapel Hill and the Cavaliers of the University of Virginia. The Cavaliers win 30–18. The game has been played 115 time since, and is called the south's Oldest Rivalry.

1898: Less than seven years after the invention of basketball, the first professional league is formed, the National Basket Ball League.

1905: Tennis's first Australian Open is held, but because of the country's remoteness, it lacks the popularity of the other Grand Slam tournaments until the end of the 20th century.

1907: The all Native American amateur basketball league, the Olympian Athletic League, is formed in New York City.

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1917: The National Hockey League is formed in Canada, replacing the previous unsuccessful National Hockey Association.

October 1919: Eight players from the Chicago White Sox are banned from baseball for life after secretly agreeing to intentionally lose World Series games in exchange for bribes. The media capitalizes on the White Sox's tarnished image by labeling them the “Black Sox” and pointing to the scandal as one of the main reasons why the franchise failed to win a World Series for the rest of the century.

December 26, 1919: Red Sox owner Harry Frazee sells Babe Ruth to the New York Yankees, forever cementing his reputation among Red Sox fans as a mediocre owner. The trade would spark a legend known as “The Curse of the Bambino,” a superstitious scapegoat that many in the media propagated over the years to provide a compelling explanation for the Red Sox's 86-year championship drought.

1920: The American Professional Football Association is formed; it soon changes its name to the National Football League.

1922: The Commonwealth Five is founded, the first all Native American professional basketball team.

March 9–11, 1922: The first intercollegiate basketball tournament is held, with the Wabash College Little Giants beating Kalamazoo College 43–23 in the championship game in Michigan.

April 18, 1923: Following a lengthy construction period costing $2.5 million (approximately $30 million in 2008 dollars), Yankee Stadium is opened. In a spirited contest, the Yankees defeat the rival Red Sox 4xxa1, due in large part to a three-run home run by Babe Ruth. Many observers dubbed the 56,000-seat ballpark “The House That Ruth Built.”

1924: The National Hockey League expands to include the United States, with the founding of the Boston Bruins.

November 29, 1934: A game between the Chicago Bears and Detroit Lions is featured in the first-ever National Football League (NFL) national broadcast, with Graham McNamee making the calls for NBC radio.

1937: The National Basketball League forms, a professional men's basketball league with 13 teams.

1939: Pennsylvania resident Carl Stoltz founds Little League Baseball. The organization grows to encompass 200,000 teams in the United States alone.

August 26, 1939: The first televised Major League Baseball game is broadcast, with the Brooklyn Dodgers hosting the Cincinnati Reds.

1942: The National Basketball League begins to integrate, adding 10 African American players.

June 6, 1946: The Basketball Association of America is formed. It becomes the National Basketball Association in 1949 after merging with its rival, the National Basketball League.

1947: Jackie Robinson breaks the color barrier in baseball by becoming the first African American player in the modern era to play in the major leagues. Eventually, the percentage of African American players in the majors would rise to over 10 percent.

1947: The first televised World Series is broadcast in the New York area by NBC, with Gillette and Ford sponsoring the event.

July 11, 1950: Major League Baseball's All-Star Game is broadcast for the first time on television.

August 11, 1951: WCBS becomes the first network to broadcast a Major League Baseball game in color.

1955: The World Series is broadcast for the first time in color.

December 28, 1958: The NFL Championship Game is the first NFL playoff to go into sudden death overtime. Nationally televised by NBC, the Baltimore Colts's 23–17 win over the New York Giants has become known as “The Greatest Game Ever [Page xl]Played,” and was instrumental in establishing the popularity of professional football, after decades in which college football was considered the superior form of the sport.

1959: Capitalizing on the new popularity of professional football, the American Football League is formed.

1960: Lawyer Mark McCormack founds International Management Group, a sports agency that would grow throughout the decades. He signs Arnold Palmer as the agency's first client.

1964: The American Youth Soccer Organization (AYSO) is founded by Los Angeles resident Hans Stierle.

1967: The first Super Bowl is played, between the National Football League and American Football League champions.

November 17, 1968: The “Heidi Game” occurs. Football fans in the Eastern and Central time zones are outraged when NBC ends the broadcast of a close game between the New York Jets and the Oakland Raiders with 65 seconds left on the clock. Rather than delay the scheduled airing of the new made-for-TV adaptation of the children's story Heidi, the network elects to not show the last few minutes of the game. In the unbroadcast minutes, the Raiders come back and win the game 43–32. The decision is still considered one of television history's biggest missteps, and signaled the popularity of football.

1970: After a decade in which competition for players between the American Football League and the National Football League drove up players's salaries, the two leagues merge, with the AFL subsumed into the NFL. Many AFL innovations are adopted, including putting names on players's jerseys, gate and broadcast revenue sharing, and the on-field game clock. A special act of Congress is required to exempt the merger from antitrust restrictions.

January 3, 1973: In coordination with a group of investors, 42-year-old shipping magnate George Steinbrenner III purchases the New York Yankees from CBS for $10 million (approximately $50 million in 2008 dollars), capitalizing on a string of unsuccessful seasons for the once-dynastic franchise. In the coming years, the organization's value would grow to more than $1 billion.

1974: Elizabeth Osder becomes the first female to officially play for a Little League Baseball team following a successful lawsuit filed by the National Organization of Women.

January 15, 1978: Super Bowl XII becomes the 10th highest-rated television program of all time, as over 34 million homes (or 47.2 percent of U.S. households) tune in to watch the Dallas Cowboys defeat the Denver Broncos by a score of 27–10.

January 21, 1979: Super Bowl XIII becomes the 11th highest-rated television program of all time, as over 35 million homes (or 47.1 percent of U.S. households) tune in to watch the Pittsburgh Steelers defeat the Dallas Cowboys by a score of 35–31.

September 7, 1979: The Entertainment and Sports Programming Network (ESPN) debuts on cable television, ushering in a new era of 24-hour sports coverage.

January 24, 1982: Super Bowl XVI becomes the fourth highest-rated television program of all time, as 40 million homes tune in to watch the San Francisco 49ers defeat the Cincinnati Bengals 26–21.

January 30, 1983: Super Bowl XVII becomes the 5th highest-rated television program of all time, as over 40 million homes (or 48.6 percent of U.S. households) tune in to watch the Washington Redskins defeat the Miami Dolphins by a score of 27–17.

1984: Coca-Cola spends $30 million to become the official sponsor of the Summer Olympic Games in Los Angeles.

January 22, 1984: Super Bowl XVIII becomes the 13th highest-rated television program of all time, as over 38 million homes (or 46.4 percent of U.S. households) tune in to watch the Los Angeles [Page xli]Raiders defeat the Washington Redskins by a score of 38–9.

December 21, 1984: Fifty-six-year-old Marge Schott becomes the first woman to purchase a baseball franchise after assuming controlling interest in the Cincinnati Reds for a total of $11 million.

1985: The first edition of Nike's Air Jordan sneaker becomes available. Citing uniform color rules, the NBA bans Michael Jordan from wearing the shoe during games, effectively creating more interest among consumers for the forbidden product.

January 20, 1985: Super Bowl XIX becomes the 14th highest-rated television program of all time, as over 39 million homes (or 46.4 percent of U.S. households) tune in to watch the San Francisco 49ers defeat the Miami Dolphins by a score of 38–16.

January 26, 1986: Super Bowl XX becomes the 7th highest-rated television program of all time, as over 41 million homes (or 48.3 percent of U.S. households) tune in to watch the Chicago Bears defeat the New England Patriots by a score of 46–10.

November 22, 1986: After years in which boxing's heavyweight division was considered to have declined to the point of irrelevance, Mike Tyson is crowned the youngest heavyweight champion in history and goes on to revitalize the sport.

1987: Computer gamemaker Nintendo releases the boxing simulation game Mike Tyson's Punch-Out!, featuring the legendary boxer as the final opponent in the game.

1988: The John Madden Football computer game is released for the MS-DOS, Apple II, and Commodore 64 operating systems. Future incarnations would be released on a yearly basis.

1989–2009: The reported average salary for a Major League Baseball player increases from $512,804 to $3,240,000.

April 1989: Leading a group of investors, future President George W. Bush purchases an 86 percent share in the Texas Rangers baseball franchise for $75 million.

December 31, 1989: The video game Arnold Palmer Tournament Golf is released for the Sega Genesis video game console.

February 10, 1990: Mike Tyson's dominance of boxing's heavyweight division is prematurely ended by a fluke victory by underdog Buster Douglas in a 10th-round knockout. Douglas's reign lasts a few short months until Evander Holyfield defeats him in a 3rd-round knockout in October.

October 20, 1990: Yankees owner George Steinbrenner hosts the late-night television series Saturday Night Live. One sketch playfully mocks Steinbrenner's tendency to wantonly fire his employees as owner of the Yankees, with Steinbrenner's character remarking, “I can't fire people! It's not in my nature!”

1991: The video game Tecmo Super Bowl is released for the Nintendo Entertainment System. The game is notable for being one of the first video games to feature a combination of real teams and real players, and not simply facsimiles with fake names.

1991–2008: As moderator of NBC's Sunday morning news program, Meet the Press, Tim Russert routinely ends his broadcasts by saying, “Go Bills.” On one occasion, Russert went so far as to publicly plead with God that the Bills win the Super Bowl.

October 1, 1993: Following a decade-long period of sustained growth, ESPN launches ESPN2.

1994: As a result of a league-wide work stoppage, Major League Baseball's World Series is cancelled for the first time in 90 years.

September 1994: The National Hockey League (NHL) Board of Governors signs a five-year, $155 million broadcasting deal with the Fox Network.

September 9, 1994: Former Minnesota Twins general manager Andy MacPhail is named president/CEO of the Chicago Cubs.

August 10, 1996: The television show Arli$$ premieres on HBO, featuring Robert Wuhl as the title character who is employed as a major sports agent.

November 15, 1996: The live-action/animated feature film Space Jam, starring basketball superstar Michael Jordan, debuts in theaters to mixed reviews but overwhelming box office interest, grossing $90,443,603 during its theatrical run. The film playfully mocks Jordan's ubiquitous marketing presence, with one character remarking, “C'mon, Michael, it's game time. Slip on your Hanes, lace up your Nikes, take your Wheaties and your Gatorade, and we'll grab a Big Mac on the way to the ballpark.”

December 13, 1996: The film Jerry Maguire, about a fictitious sports agent, opens in theaters to rave reviews. It would go on to gross $273,552,592 worldwide, and Tom Cruise would be nominated for an Oscar for playing the title character.

December 17, 1996: Twenty-one-year-old golfer Tiger Woods is named Sportsman of the Year by Sports Illustrated.

January 3, 1997: Reebok sues TriStar Pictures for $110 million for their alleged failure to include a Reebok product placement in the blockbuster film Jerry Maguire.

1998: George W. Bush sells the Texas Rangers baseball franchise for a total profit of $170 million, a gain that would partly enable him to have the financial means to run for president in 2000.

August 9, 1998: Wayne Gretzky, arguably the greatest hockey player of all time, is traded from the Edmonton Oilers to the Los Angeles Kings. The move draws significant ire from Canadian hockey fans to such an extent that some Canadian politicians call for the government to block the trade.

1999: The video game Tiger Woods '99, the first incarnation in the series, is released by EA Sports for the PC and the PlayStation game console. A new version would be released on a yearly basis.

April 20, 1999: Cincinnati Reds owner Marge Schott sells her controlling interest in the franchise for $67 million following a turbulent 15-year management reign. Schott had told reporters, among other controversial remarks, that Adolf Hitler “was good in the beginning, but went too far.”

December 1999: Salton, Inc. signs retired boxer George Foreman to a $137.5 million, five-year deal to endorse its line of contact grills.

January 15, 2000: Billionaire entrepreneur Mark Cuban, who sold the Internet site http://Broadcast.com to Yahoo! for $5.9 billion in Yahoo! stock, purchases the NBA's Dallas Mavericks for $285 million.

January 20, 2000: Retired basketball superstar Michael Jordan signs an agreement to become president of basketball operations for the fledgling Washington Wizards franchise.

September 2000: Tiger Woods signs a five-year, $100 million endorsement deal with Nike.

January 8, 2001: Tennis player Venus Williams signs a five-year, $40 million product-endorsement contract with Reebok, the largest ever for a female athlete.

January 12, 2001: Leading a group of nine investors, Starbucks chief global strategist Howard Schultz purchases the Seattle SuperSonics NBA franchise for a total of $200 million.

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January 30, 2001: Invesco signs a 20-year, $120 million deal to secure the naming rights from the Denver Broncos for their new stadium.

February 3, 2001: The XFL debuts with a game featuring the New York/New Jersey Hitmen and the Las Vegas Outlaws.

May 11, 2001: After failing to secure a renewed deal with UPN, the XFL officially folds after a single season of operation.

June 18, 2001: The National Basketball Association cuts ties with Schick after an 18-year deal, the longest in the association's history. Schick was unsatisfied over the NBA's decision to move the Rookie All-Star Game to a daytime slot since Schick had signed deals with many of the league's rookies.

June 19, 2001: Coca-Cola renews its deal with the National Hockey League to become the league's official soft drink for an additional four years.

September 13, 2001: The NFL announces it will postpone all of its games during the coming Sunday, citing the September 11 terrorist attacks as the reason for the postponement.

September 25, 2001: Basketball superstar Michael Jordan comes out of retirement for the second time to play for the Washington Wizards, and pledges to donate his salary to victims of the September 11 terrorist attacks.

January 17, 2002: After a whirlwind year that saw the propelling of Kurt Warner from Arena Football League afterthought to Super Bowl Most Valuable Player (MVP), the quarterback is named the most marketable NFL athlete by Sports Business Daily.

March 2002: Coors Brewing Co. becomes the official beer sponsor of the National Football League, signing a contract worth approximately $300 million over five years.

August 2002-August 2003: Shoe company Nike increases its marketing expenses from $1.09 billion to $1.44 billion, vastly exceeding its main competition, Reebok, which has marketing deals worth a total of $196.3 million.

2003: Tennis superstar Andy Roddick hosts an episode of the late-night television series Saturday Night Live.

2003: Soccer player David Beckham, arguably the most popular sports figure worldwide, signs a $160 million lifetime deal with adidas.

2004: ESPN publishes its list of the 25 most memorable sports commercials of all time. A Coca-Cola ad featuring “Mean” Joe Greene tossing his jersey to a young fan in exchange for a bottle of Coke is selected as the top commercial of all time.

2004: Despite beauty and charm, Anna Kournikova is ranked as the 18th biggest sports flop in the past 25 years by ESPN.

June 2, 2004: Harris Interactive releases its list of the most popular U.S. Major League Baseball franchises. The New York Yankees are ranked first, followed by the Chicago Cubs, Atlanta Braves, Boston Red Sox, Detroit Tigers, and Philadelphia Phillies.

December 2004: EA Sports signs an exclusive licensing agreement with the National Football League and the National Football League Players Association, making it the only company with the lawful ability to include real teams and players in its Madden football video game series.

January 17, 2005: Quarterback Michael Vick signs the largest contract in NFL history at 10 years and $130 million to play for the Atlanta Falcons. Vicks was also guaranteed an NFL-record $37 million in bonuses.

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March 17, 2005: Seven-time all star Mark McGwire testifies before the House Government Reform Committee about steroid abuse, repeatedly emphasizing under intense questioning about his own use that he is “not here to talk about the past.”

April 2005: New York Yankees shortstop Derek Jeter is named the most marketable Major League Baseball player according to a survey conducted by Sports Business Daily. Jeter received 345 points in the survey, while his teammate, third baseman Alex Rodriguez, placed second with 181 points.

April 18, 2005: The National Football League announces a major shakeup of its broadcasting partners. ESPN signs an eight-year, $1.1 billion deal to broadcast NFL games on Monday night, while NBC signs a five-year, $600 million deal to broadcast NFL games on Sunday night. ABC, the original broadcaster of Monday Night Football, will no longer broadcast NFL games.

October 2005: Cyclist Lance Armstrong hosts the late-night television series Saturday Night Live.

June 1, 2006: Former racer Richard Petty remarks on the state of women drivers in the racecar sport, saying, “I just don't think it's a sport for women.”

July 27, 2006: French authorities announce that American cyclist Floyd Landis, the most recent of the Tour de France winners, tested positive for an unusually high T/E ratio, a clear and doubtless indication of illegal doping. The revelation severely weakened Landis's marketing stature.

2007: Football superstar Peyton Manning hosts an episode of the late-night television series Saturday Night Live.

March 2007: Golfer Tiger Woods is named the most marketable athlete in the United States by Sports Business Daily. Peyton Manning, LeBron James, Derek Jeter, Dwayne Wade, Dale Earnhardt Jr., Tom Brady, Shaquille O'Neal, Maria Sharapova, and Brett Favre round out the top 10 of the list. Michael Jordan is listed as the most marketable athlete retired from sports.

January 30, 2008: British Football Association Chairman David Triesman estimates that the English Premier League is in debt to its creditors by approximately $4.5 billion.

February 11, 2008: CNBC's SportsBiz publishes its list of the most popular NFL jerseys in the United States. Tony Romo of the Dallas Cowboys is ranked first, followed by Tom Brady, Brett Favre, Peyton Manning, LaDainian Tomlinson, Adrian Peterson, and Eli Manning.

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August 7, 2008: After a 16-year tenure with the Green Bay Packers, quarterback Brett Favre is traded to the New York Jets, sparking a marketing windfall in the nation's largest media market.

September 2008: Despite a massive liquidity crisis, American International Group (AIG) announces it will continue to sponsor English soccer team Manchester United.

November 14, 2008: The NHL releases its list of the top-selling NHL jerseys in the United States, with Sidney Crosby assuming the top rank, followed by Alex Ovechkin, Mike Richards, Henrik Lundqvist, and Evgeni Malkin.

December 16, 2008: The MLB network, Major League Baseball's official channel, debuts.

December 31, 2008: Former basketball superstar Charles Barkley is arrested on DUI (driving under the influence of drugs or alcohol) charges after failing field sobriety tests conducted by police in Scottsdale, Arizona. As a consequence, cell phone company T-Mobile says it will not use Barkley in its advertising promotions for an extended period of time.

2009: Olympic gold medalist Michael Phelps is shown smoking marijuana in a photo published by British tabloid News of the World. As a result, cereal company Kellogg's announces it will not renew Phelps's endorsement contract.

January 28, 2009: The NBA releases its list of the best-selling player jerseys in the United States. Kobe Bryant is ranked first, followed by Kevin Garnett, LeBron James, Chris Paul, Allen Iverson, and Paul Gasol.

February 2009: Danica Patrick signs with International Management Group (IMG) for the handling of her marketing management.

July 2009: Seattle Seahawks player T. J. Houshmandzadeh announces he is boycotting the popular Madden NFL video games series because of his video game facsimile having a low overall rating. He remarks to an interviewer that he's “not playing Madden no more until they get my rating right,” adding, “I used to be the best in the world at Madden.”

October 8, 2009: The Harris Poll releases its list of the most popular NFL franchises. The Dallas Cowboys are ranked first, followed by the Pittsburgh Steelers, Chicago Bears, Indianapolis Colts, and New England Patriots.

December 14, 2009: Married professional golfer Tiger Woods is dropped from his endorsement deal with consulting firm Accenture after a series of reports surface detailing extramarital affairs with multiple mistresses. The firm explains in a statement that Woods is “no longer the right representative.”

February 14, 2010: The largest crowd in basketball history, 108,713 people, attends the 2010 NBA All-Star Game at Cowboys Stadium in Arlington, Texas. The East defeats the West by a narrow 141–139.

April 6, 2010: The University of Connecticut women's basketball team finishes its second undefeated season by winning the NCAA Division I tournament.

June 22–24, 2010: The longest match in tennis history is played in the first round of the Wimbledon men's tournament, between American 23rd seed John Isner and French qualifier Nicolas Mahut. Over the course of three days, the men play 183 games for 11 hours and 5 minutes of play.

July 13, 2010: George Steinbrenner, owner of the New York Yankees, and one of the most influential owners in baseball history, dies of a heart attack.

September 14, 2010: Football player Reggie Bush forfeits his 2005 Heisman Trophy following an NCAA investigation into his involvement with marketing agents while playing college football at the University of South Carolina.

March 3, 2011: The Collective Bargaining Agreement (CBA) between the NFL owners and the NFL Players Association expires. The owners had voted in 2008 to allow the CBA to expire after the 2010 season, and in the intervening time, no agreement had been reached.

Glossary

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ACC: The Atlantic Coast Conference, a collegiate athletic conference that was founded in 1953.

ADA: The Americans with Disabilities Act, which required stadiums to provide accessibility for those with disabilities.

ADI: Area of Dominant Influence. Used by the media industry to refer to different types of geographic sports markets.

AFL: The Arena Football League, a lower-league organization that emphasizes the fast-paced aspects of football with high-scoring offenses.

Aftermarket: Any market in which customers for one product or service are likely customers for a related complementary good.

AIAW: The Association for Intercollegiate Athletics for Women, founded in 1971.

Antitrust: Action by government authorities that promotes or maintains market competition by reducing or eliminating a particular firm's ability to dominate the market. Major League Baseball was ruled to be immune from antitrust laws in 1922.

Arbitration: A process in Major League Baseball for young players who are seeking a pay raise from the league minimum of a few hundred thousand dollars. The team the athlete is playing for and the athlete himself each submit a figure to an independent arbitrator, who then determines how much the player should be paid.

Athlete endorsements: The contractual obligation of an athlete (professional or amateur) to market himself or herself in accordance with a particular product or good. One early example is the signing of a contract by baseball player Honus Wagner with the Louisville Slugger company. Risks abound with athlete endorsements, such as when Tiger Woods was exposed in a media onslaught as an adulterer.

AYSO: The American Youth Soccer Organization, founded in 1964 to nurture the next generation of American soccer stars.

BCS: The Bowl Championship Series, the official ranking system of college football.

Brand association: The subconscious connection of a particular team's marketing techniques (e.g., logos and merchandise) to the team itself.

[Page 1682]

Brand insistence: The act of a consumer pledging loyalty to one particular sports franchise.

Brand rejection: The act of a consumer ceasing their consumption of a particular sports player or franchise as a result of positive, preconceived notions being changed.

Broadcast rights: The paid privilege of a broadcasting company to televise a sports league's games. Some cases, such as NBC's rights to Notre Dame Football games, have one company receiving the rights to broadcast a sports team's games.

Bye: A practice which, in major American sports, is limited to the NFL. It allows two division winners with the best regular season records from each of the two conferences to bypass the first round of the playoffs. The impact of the number of teams in a league on the structure of the playoffs is little-discussed in sports. In the NBA, which allows more than half of the league into the playoffs, it leads to a postseason which is, as a ratio of playoff games to regular season games, more than twice as long as baseball's post-season. In football, which plays games less frequently and whose players face the possibility of serious injury, this would be untenable.

Bye week: A term extending a bye in football, a bye week is any week in which a team in the NFL or CFL does not need to play. In addition to the playoff byes, every NFL team has a week in which they do not play a game scheduled sometime between week four and week 10 of the regular season, in order to extend the regular-season schedule by one week.

Carnegie reports: A series of documents released in 1929 that exposed recruiting violations and academic abuses in college sports.

Category exclusivity: The right of a company or firm to promote itself as the sole sponsor of a team or sport in a particular category (e.g., Ford being official automobile of the New York Yankees).

Cause marketing: A public relations venture by a firm or company that includes the sponsorship of a non-profit organization.

CBA: Collective Bargaining Agreement, an agreement between an employer (such as a sports league) and a group of employees (such as a players union).

CFL: The Canadian Football League, consisting of eight teams. Founded in 1958, it is the highest level of competition in Canadian football.

CIAW: The Commission on Intercollegiate Athletics for Women, founded in 1966.

Clutter sponsorship: Too much sponsorship in a particular medium, usually forcing a firm to develop a unique brand message.

Collusion: The act of players or firms undertaking financial negotiations or strategies in tandem in the hopes of reaching greater gains than what they would normally receive if they bargained or implemented strategies by themselves. An example is the 1966 collusion between pitchers Don Drysdale and Sandy Koufax, who negotiated their contracts as a pair and received an intense amount of scrutiny for doing so.

Competitive balance: The concept of fans paying higher premiums for competitive games than they would for lopsided victories. Avid fans generally appreciate lopsided victories, while casual fans prefer a more competitive outcome.

Concessions: Edibles sold at sports stadiums that may include hot dogs and beer.

Copyright: Legally protected information derived from sporting contests. The city of Las Vegas, which hosted Super Bowl parties with 7,000-plus people featuring a giant screen broadcasting the game, was found in violation of the NFL's copyright policy.

Crowd control: The efforts of stadium officials to maintain security in the face of dangerous behavior perpetrated by fans of a team. Some stadiums have implemented policies, such as alcohol-free zones, in an attempt to subdue the rising tides of emotion some fans display.

[Page 1683]

Davis Cup: A tennis competition that began in 1900 and features international teams competing against one another.

Demand inelasticity: An economic theory stating that as changes in the price of a good or service occur, the demand for that good or service is changed as well. In the sporting world, however, ticket prices and concessions can have their prices affected without significantly changing the demand by consumers of those products.

Demographics: Characteristics of people that determine the level of interest in a particular sport. These can include such factors as age, gender, socioeconomic status, and political allegiance. For example, members of the Republican Party are more likely to follow professional football than members of the Democratic Party.

Determinants of demand: Factors that dictate the amount sports consumers demand in terms of attendance at games and watching broadcasts of their teams. These factors include price and price elasticity, distance traveled, quality of contest, stadium capacity, game-day promotions and giveaways, uncertainty of outcome, competitive balance, presence of star players, and team strength.

DGWS: The Division of Girls' and Women's Sports, organized in 1958.

DirecTV: Satellite cable company that revolutionized the concept of “local” sports teams by offering NFL Sunday Ticket, allowing a consumer who does not live in a particular team's media market to view their games. For example, a consumer living in New York can watch all of the games played by the San Francisco 49ers, despite the fact that the consumer and the team's media market are on opposite coasts of the United States.

Doping: The use of banned substances to enhance or create a competitive edge. Anabolic steroids, created by Adolf Butenandt in the 1930s, are sometimes used by athletes. Famous examples of doping involve Mark McGwire and Alex Rodriguez in baseball and Floyd Landis in cycling.

Draft: A process used to distribute eligible players among sports teams. In the draft process, teams take turns selecting from the pool of players and have exclusive rights to negotiate a contract with the players they select. (This does not compel the player to play for that team, but he or she cannot play for another one.) Most drafts are entry drafts, in which the pool of players have not yet played in the league, and are a method for ensuring parity among the teams. Drafts are included as part of the collective bargaining agreements between player unions and leagues, so they're exempt from antitrust violations. The importance of the draft varies from sport to sport: in the NFL and NBA, the draft is key to team management strategy while in MLB they receive considerably less attention, since baseball players nearly always play in the minor leagues for several years after being drafted and many of them will never play a major league game.

E-commerce: Revenue generated from online Internet transactions. Popular in the selling of sports memorabilia.

Eduselling: A sponsoring corporation educating the public about a new product or service.

Emergency planning: Efforts undertaken by stadium executives to ensure spectator safety. The need for emergency planning became increasingly evident following the September 11th attacks, as fears of a possible terrorist attack on a major sports stadium grew.

ESPN: The Entertainment Sports Programming Network. Launched in 1979, the network has steadily increased its popularity.

ESPN2: The second incarnation of ESPN, the channel debuted in 1993 and was originally conceived as a younger, “hipper” version of ESPN.

ESPNews: Launched in 1996, the channel is designed as a 24-hour sports news network.

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Face: A “good guy” sports figure, typically in professional wrestling.

Fan avidity: The degree to which fans are attracted to a particular team. This can range from Basking In Reflected Glory (BIRG) to Cutting Off Reflected Failure (CORF), which both depend on the particular team's most recent performances. Interestingly, when referring to a win, most fans will use the pronouns “us” or “we” to describe the team; while in the event of a loss, most fans will use the pronouns “they” or “them.”

Fantasy sport: A game in which players take the role of team owners, assembling a team and competing against other fantasy owners based on the actual statistics of the real players. The statistical performance of players in real games is converted into points that are awarded to the owners who possess those players in the fantasy game. Fantasy sports are strongly associated with informal gambling and used to require a “league commissioner” to laboriously calculate the impact of each real-world game on the fantasy game. Today, software can generate the results automatically and model actual games played by the fantasy teams based on real-world statistics. Modern sports video games often have more in common with fantasy sports than they do with the first-generation sports video games of the 1970s and 1980s, which had minimal simulation.

Farm team: A lower-level team that is usually affiliated with a major league team. The modern-day farm system is credited with achieving a greater balance of competition, as it prevented richer clubs from stockpiling future stars.

FIFA: The Fédération Internationale de Football Association, which is responsible for organizing the World Cup, among other international soccer activities.

Final Four: The final four teams in a playoff tournament in the NCAA (which has trademarked the term). While it can refer to any sport, when capitalized, it refers to the NCAA Men's Division I and Women's Division I basketball championships, held in the spring.

Flutie Effect: Named after Boston College quarterback Doug Flutie, whose fame in winning the Heisman Trophy led to a significant increase in the college's number of applicants.

Franchise: A team in a professional sports league organization (a term generally limited to North America).

Free agency: The ability of a player to leave his current team to seek fame and fortune elsewhere.

General obligation bonds: The type of loan that is most commonly used to build a stadium.

Geodemographic segmentation: Marketing tool that is used by sports teams' representatives to determine which types of fans will consume sports media.

Golf Channel: Cable network providing 24-hour coverage of the PGA Tour along with other professional golf activities. Founded in 1995 and would grow to be available in over 110 million homes internationally.

Governing body: The legally sanctioned organization that is responsible for passing and enforcing the rules of the game.

Grassroots sponsorship: A return to the basics of marketing in an age dominated by high-tech promotions. An example is Coca-Cola sponsoring low-level soccer teams.

Green marketing: A concept involving the consideration of the environment in relation to sports marketing. Recent initiatives include the NHL's campaign to promote environmentalism.

Gross rating points: Refers to the average number of times a consumer is exposed to a marketing message.

Group sales: Marketing strategies designed to target multiple people instead of just one consumer. It is particularly applicable to people attending sporting contests in arenas or stadiums, as research has [Page 1685]concluded that only two percent of sports fans attend games by themselves.

Groupthink: Coined by Irving L. Janis, the term refers to the inability of a group or organization to critically solve problems due to an overwhelming desire to reach a consensus among the group. Such thinking can be dangerous for sports organizations, as the strategy of building and managing a ballclub might be hindered by a consensus-driven approach.

Hall of Fame: A museum-like attraction which enshrines particular players and other participants who were important to a sport or a team. While individual teams may operate their own halls of fame, sportwide halls of fame are generally operated independently of the league. This was an important point in the controversy over Pete Rose's being barred from the Baseball Hall of Fame concurrent with his banishment from professional baseball, but since the hall is not operated by Major League Baseball, it could have elected to maintain his eligibility for being voted into the Hall on the strength of his achievements prior to his gambling scandal. Similarly, it remains unclear what the Baseball Hall will do about admitted or suspected steroid users. Many halls of fame induct a small number of managers and journalists, key to the history of the game, in addition to their most important players.

Heel: A villain sports figure, typically in professional wrestling.

Hooliganism: The phenomenon of sports spectators engaging in overly rowdy behavior. One of the more alarming examples of hooliganism and the dangers it causes occurred in May 1985 in Brussells, Belgium, during a match between the soccer clubs Juventus and Liverpool that led to the deaths of 39 people.

Horizontal satisfaction: The level of satisfaction among fans over a particular game.

IOC: The International Olympic Committee, founded in 1894.

ITF: The International Tennis Federation, founded in 1913.

Joint venture: A business agreement between two parties who agree to contribute equity and resources to a new, shared enterprise. For instance, ESPN Star Sports is a joint venture between U.S.-based ESPN and Asia's Star TV, joining their brands for a series of 17 sports television networks operating throughout Asia.

Knight Commission: A consortium brought together in 1991 to study the problem of college athletes illegally receiving sums of money.

Lanham Act: Legislation passed in 1946 that protected the logos and brand names of sports teams and other organizations.

LCV: Lifetime customer value, used by sports teams to determine the amount of income they can expect from a fan over their entire lifetime.

Lockout: A work stoppage in which employers prevent employees from working, rather than employees going on strike. In the United States, employers can only hire temporary players during a lockout (a limitation they do not face during strikes) and many states guarantee an employee's right to unemployment benefits during a lockout; as a result, lockouts remain fairly uncommon.

Madden: Shorthand term for EA Sports' Madden NFL video game franchise. The video game has an exclusive NFL license, meaning it is the only football video game to include real players and teams.

March Madness: The championship tournaments of the NCAA's Men's Division I and Women's Division I basketball, which take place primarily in March and involve 68 and 64 teams, respectively. Constructing brackets for the tournament—predicting the winner of each game in each round—has become a serious and demanding hobby and the object of informal betting for many college basketball fans. Surprising underdog wins are called “bracket busters” because of the number of fans' brackets proven wrong by the win.

Mascot: A symbol, often an animal or object, that is used to bolster fan support.

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MLB: Major League Baseball. A fixture of American cultural life, MLB has been in existence for more than a century, and fans of the league have seen it evolve from a mere pastoral pastime to a multi-billion dollar empire.

MLS: Major League Soccer. The United States' premier professional soccer league, the MLS was founded in 1993 to coincide with the U.S. hosting the 1994 FIFA World Cup. Originally, the league was comprised of 10 teams, but its rising popularity has led to a current pool of 16 teams.

MSG: Refers both to Madison Square Garden and the cable channel of the same name.

NASCAR: The National Association for Stock Car Auto Racing, founded in 1947. The largest sanctioning body for stock car racing in the United States, NASCAR races are second only to football in broadcast viewership.

NASPAA: The National Association of Sports Address Public Announcers, founded in 2003.

NBA: The National Basketball Association, the major professional basketball league, founded in 1946. Consists of 30 teams in the United States and Canada. Many features of the modern league resulted from the merger between the NBA and the American Basketball Association. Under commissioner David Stern, who has held office since 1984, the sport has expanded to the global market.

NCAA: The National Collegiate Athletic Association, founded in 1906. The most important body in college sports, the NCAA oversees the conferences and athletic programs for many American and Canadian colleges and universities. The three-division setup dates to 1973, and under it, Division I and Division II schools are permitted to offer athletic scholarships, allowing them to be more competitive in recruiting potential players. The NCAA is key in establishing the proper conduct for running collegiate athletics programs.

NFL: The National Football League, the major professional American football league, was founded in 1920. It consists of 32 teams in the United States and Canada. The most attended and most-watched professional sport, the NFL is also marked by its commitment to parity.

NFL Network: Founded in 2003, this network hosts eight regular-season NFL games per season.

NHL: The National Hockey League, the major professional hockey league, was founded in 1917. It consists of 30 teams in the United States and Canada.

NSGA: The National Sporting Goods Association, a not-for-profit trade association that was founded in 1929. Can also refer to the National Senior Games Association, a non-profit organization that hosts the Senior Olympics.

Overexposure: The possibility of a consumer becoming irritated or annoyed by constant inundation of a marketer's message.

Pong: Considered to be the world's first sports video game. A simplified version of tennis, Pong was released in 1972 by Atari.

POS: Point of sale, the place where the transaction for a good or service occurs—such as a checkout terminal or the software equivalent.

PPV: Pay per view, a televised cable program (whether live or delivered on demand) that carries [Page 1687]a charge separate from the viewer's cable subscriptions, which will show up on the cable bill. Pay per view services are nearly always commercial-free, though may include sponsors, product placement, or trailers for other programs. Common pay per view sporting events include boxing, wrestling, and mixed martial-arts matches. Pay per view is as old as cable television, and first became popular when the Portland Trailblazers made some of their 1978 season games available on pay per view, following their 1977 championship. Since the 1980s, pay per view has been especially popular for boxing matches, and wrestling and mixed martial-arts followed boxing's example. As digital cable has become popular and more channels have been made available, ESPN has begun offering college football and basketball games via pay per view.

Risk manager: Someone associated with a sporting event who is appointed to determine and provide solutions for all liability issues.

Rooney Rule: A set of guidelines in the National Football League that requires any team in the process of interviewing people for their head coaching position must interview at least one minority candidate.

Ryder Cup: A golf competition that is notable for its prestige and worldwide participation.

SBA: The Sports Broadcasting Act of 1961. Enacted by Congress, it allows an antitrust exemption for sports broadcasting rights.

Site stickiness: Web term referring to the concept of Internet users returning time and again to Websites. In the sports world, the biggest example of site stickiness is users returning to sports message boards.

SPARTA: The Sports Agent Responsibility and Trust Act. Enacted by Congress in 2004 in an effort to regulate the activities of sports agents.

Speedvision: A cable channel founded in 1996 that dedicates itself to providing motorsports content and races.

Sponsorship: The act of a company promoting its products and/or services with the paid participation of a famous athlete or figure in the sports world.

Student athlete: A collegiate athlete who is also a full-time student.

Super Bowl: Considered by many to be the biggest media event of the year in the United States, the Super Bowl is the championship game of the National Football League. Advertisers are usually required to pay an average of $3 million for each 30-second advertisement during commercial breaks.

Tailgating: A pre-game celebration in which spectators at a sporting event will consume food and beverages and interact with each other—usually in the stadium's parking lot—in anticipation of the game beginning.

Three-peat: A basketball term referring to a team winning three straight championships. Legendary basketball coach Pat Riley coined the term and receives a sum of money every time it is mentioned in the media.

Title IX: Federal legislation enacted in 1972 that requires that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” While not specifically mentioning collegiate or high school sports, the legislation would come to be heavily associated with them.

Trading cards: Miniature pieces of paper featuring player photos and statistics. The most expensive trading card today is one of Honus Wagner, and netted $3 million at an auction in 2007.

Trash-talking: Method of self-promotion by which an athlete will speak in insulting terms about a particular player or organization.

Twitter: A social networking site with over 50 million worldwide users that has been instrumental in athletes' self-promotion.

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UEFA: The Union of European Football Associations, the supreme governing body of all European soccer.

Up-selling: The process by which a seller of a good will suggest other purchases in addition to the agreed-upon item or service. An example of this in the sports world is a popcorn seller suggesting that the consumer purchase a soda because the popcorn will make him or her thirsty.

USA Triathlon: The governing body that sanctions and monitors all official triathlon events in the United States.

USHL: The United States Hockey League is the top junior ice hockey league in the United States and was founded in 1947.

USTA: The United States Tennis Association, the governing body of tennis in the United States, founded in 1881.

Variable ticket price: Strategy implemented by the ownership of sports teams to take advantage of fans' interest in a particular game or series by increasing prices.

Vertical satisfaction: Fans' level of satisfaction over an entire organization.

WADA: The World Anti-Doping Agency, established in 1999 in Switzerland.

WBC: The World Baseball Classic. Organized in 2005 to promote the game of baseball around the world, the WBC has seen only one champion—Japan—in its two tournaments in 2006 and 2009.

Word-of-mouth: Term referring to the concept of consumers indirectly promoting a team or player to other consumers.

World Cup: Held once every four years, the World Cup is an international soccer competition featuring representatives from a handful of nations.

XFL: A short-lived football league created by wrestling mogul Vince McMahon that tried to combine professional wrestling with professional football.

Zone of affection: Term referring to customers of a firm who exhibit maximum loyalty to that company. In sports, those inhabiting the zone of affection would include diehard fans of a team.

Resource Guide

[Page 1689]

Books

Aaker, D. A. Managing Brand Equity: Capitalizing on the Value of a Brand Name. New York: The Free Press, 1991

Appendices

One Hundred Eighth Congress of the United States of America: AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday, the twentieth day of January, two thousand and four

An Act

To designate certain conduct by sports agents relating to the signing of contracts with student athletes as unfair and deceptive acts or practices to be regulated by the Federal Trade Commission.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Sports Agent Responsibility and Trust Act”.

SEC. 2. DEFINITIONS.

As used in this Act, the following definitions apply:

(1) Agency contract.—The term “agency contract” means an oral or written agreement in which a student athlete authorizes a person to negotiate or solicit on behalf of the student athlete a professional sports contract or an endorsement contract.

(2) Athlete agent.—The term “athlete agent” means an individual who enters into an agency contract with a student athlete, or directly or indirectly recruits or solicits a student athlete to enter into an agency contract, and does not include a spouse, parent, sibling, grandparent, or guardian of such student athlete, any legal counsel for purposes other than that of representative agency, or an individual acting solely on behalf of a professional sports team or professional sports organization.

(3) Athletic director.—The term “athletic director” means an individual responsible for administering the athletic program of an educational institution or, in the case that such program is administered separately, the athletic program for male students or the athletic program for female students, as appropriate.

(5) Endorsement contract.—The term “endorsement contract” means an agreement under which a student athlete is employed or receives consideration for the use by the other party of that individual's person, name, image, or likeness in the promotion of any product, service, or event.

(6) Intercollegiate sport.—The term “intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student athlete are established by a national association for the promotion or regulation of college athletics.

H.R. 361–2

[Page 1696]

(7) Professional sports contract.—The term “professional sports contract” means an agreement under which an individual is employed, or agrees to render services, as a player on a professional sports team, with a professional sports organization, or as a professional athlete.

(8) State.—The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(9) Student athlete.—The term “student athlete” means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport. An individual who is permanently ineligible to participate in a particular intercollegiate sport is not a student athlete for purposes of that sport.

SEC. 3. REGULATION OF UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN CONNECTION WITH THE CONTACT BETWEEN AN ATHLETE AGENT AND A STUDENT ATHLETE.

(a) Conduct Prohibited.—It is unlawful for an athlete agent to—

(1) directly or indirectly recruit or solicit a student athlete to enter into an agency contract, by—

(A) giving any false or misleading information or making a false promise or representation; or

(B) providing anything of value to a student athlete or anyone associated with the student athlete before the student athlete enters into an agency contract, including any consideration in the form of a loan, or acting in the capacity of a guarantor or co-guarantor for any debt;

(2) enter into an agency contract with a student athlete without providing the student athlete with the disclosure document described in subsection (b); or

(3) predate or postdate an agency contract.

(b) Required Disclosure by Athlete Agents to Student Athletes.—

(1) In general.—In conjunction with the entering into of an agency contract, an athlete agent shall provide to the student athlete, or, if the student athlete is under the age of 18, to such student athlete's parent or legal guardian, a disclosure document that meets the requirements of this subsection. Such disclosure document is separate from and in addition to any disclosure which may be required under State law.

(2) Signature of student athlete.—The disclosure document must be signed by the student athlete, or, if the student athlete is under the age of 18, by such student athlete's parent or legal guardian, prior to entering into the agency contract.

(3) Required language.—The disclosure document must contain, in close proximity to the signature of the student athlete, or, if the student athlete is under the age of 18, the signature of such student athlete's parent or legal guardian, a conspicuous notice in boldface type stating: “Warning to Student Athlete: If you agree orally or in writing to be represented by an agent now or in the future you may lose your eligibility to compete as a student athlete in your sport. Within 72 hours after entering into this contract or before the next athletic [Page 1697]event in which you are eligible to participate, whichever occurs first, both you and the agent by whom you are agreeing to be represented must notify the athletic director of the educational institution at which you are enrolled, or other individual responsible for athletic programs at such educational institution, that you have entered into an agency contract.”

H.R. 361–3

SEC. 4. ENFORCEMENT.

(a) Unfair or Deceptive Act or Practice.—A violation of this Act shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).

(b) Actions by the Commission.—The Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act.

SEC. 5. ACTIONS BY STATES.

(a) In General.—

(1) Civil actions.—In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by the engagement of any athlete agent in a practice that violates section 3 of this Act, the State may bring a civil action on behalf of the residents of the State in a district court of the United States of appropriate jurisdiction to—

(A) enjoin that practice;

(B) enforce compliance with this Act; or

(C) obtain damage, restitution, or other compensation on behalf of residents of the State.

(2) Notice.—

(A) In general.—Before filing an action under paragraph (1), the attorney general of the State involved shall provide to the Commission—

(i) written notice of that action; and

(ii) a copy of the complaint for that action.

(B) Exemption.—Subparagraph (A) shall not apply with respect to the filing of an action by an attorney general of a State under this subsection, if the attorney general determines that it is not feasible to provide the notice described in that subparagraph before filing of the action. In such case, the attorney general of a State shall provide notice and a copy of the complaint to the Commission at the same time as the attorney general files the action.

(b) Intervention.—

(1) In general.—On receiving notice under subsection (a)(2), the Commission shall have the right to intervene in the action that is the subject of the notice.

(2) Effect of intervention.—If the Commission intervenes in an action under subsection (a), it shall have the right—

(A) to be heard with respect to any matter that arises in that action; and

(B) to file a petition for appeal.

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H.R. 361–4

(c) Construction.—For purposes of bringing any civil action under subsection (a), nothing in this title shall be construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the laws of that State to—

(1) conduct investigations;

(2) administer oaths or affirmations; or

(3) compel the attendance of witnesses or the production of documentary and other evidence.

(d) Actions by the Commission.—In any case in which an action is instituted by or on behalf of the Commission for a violation of section 3, no State may, during the pendency of that action, institute an action under subsection (a) against any defendant named in the complaint in that action.

(e) Venue.—Any action brought under subsection (a) may be brought in the district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.

(f) Service of Process.—In an action brought under subsection

(a), process may be served in any district in which the defendant—

(1) is an inhabitant; or

(2) may be found.

SEC. 6. PROTECTION OF EDUCATIONAL INSTITUTION.

(a) Notice Required.—Within 72 hours after entering into an agency contract or before the next athletic event in which the student athlete may participate, whichever occurs first, the athlete agent and the student athlete shall each inform the athletic director of the educational institution at which the student athlete is enrolled, or other individual responsible for athletic programs at such educational institution, that the student athlete has entered into an agency contract, and the athlete agent shall provide the athletic director with notice in writing of such a contract.

(b) Civil Remedy.—

(1) In general.—An educational institution has a right of action against an athlete agent for damages caused by a violation of this Act.

(2) Damages.—Damages of an educational institution may include and are limited to actual losses and expenses incurred because, as a result of the conduct of the athlete agent, the educational institution was injured by a violation of this Act or was penalized, disqualified, or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate actions likely to be imposed by such an association or conference.

(3) Costs and attorneys fees.—In an action taken under this section, the court may award to the prevailing party costs and reasonable attorneys fees.

(4) Effect on other rights, remedies and defenses.—This section does not restrict the rights, remedies, or defenses of any person under law or equity.

SEC. 7. LIMITATION.

Nothing in this Act shall be construed to prohibit an individual from seeking any remedies available under existing Federal or State law or equity.

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H.R. 361–5

SEC. 8. SENSE OF CONGRESS.

It is the sense of Congress that States should enact the Uniform Athlete Agents Act of 2000 drafted by the National Conference of Commissioners on Uniform State Laws, to protect student athletes and the integrity of amateur sports from unscrupulous sports agents. In particular, it is the sense of Congress that States should enact the provisions relating to the registration of sports agents, the required form of contract, the right of the student athlete to cancel an agency contract, the disclosure requirements relating to record maintenance, reporting, renewal, notice, warning, and security, and the provisions for reciprocity among the States.

“(A) The term ‘anabolic steroid’ means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, corticosteroids, and dehydroepiandrosterone), and includes—

“(xlx) any salt, ester, or ether of a drug or substance described in this paragraph.

The substances excluded under this subparagraph may at any time be scheduled by the Attorney General in accordance with the authority and requirements of subsections (a) through (c) of section 201.;” and

(2) in paragraph (44), by inserting “anabolic steroids,” after “marihuana,”.

(1) in paragraph (1), by striking “substance from a schedule if such substance” and inserting “drug which contains a controlled substance from the application of titles II and III of the Comprehensive Drug Abuse Prevention and Control Act (21 U.S.C. 802 et seq.) if such drug;” and

(2) in paragraph (3), by adding at the end the following:

“(C) Upon the recommendation of the Secretary of Health and Human Services, a compound, mixture, or preparation which contains any anabolic steroid, which is intended for administration to a human being or an animal, and which, because of its concentration, preparation, formulation or delivery system, does not present any significant potential for abuse.”.

(c) Anabolic Steroids Control Act.—Section 1903 of the Anabolic Steroids Control Act of 1990 (Public Law 101–647) is amended—

21 USC 802 note.

(1) by striking subsection (a); and

(2) by redesignating subsections (b) and (c) as subsections (a) and (b), respectively.

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118 STAT. 1664ΆΆΆΆPUBLIC LAW 108-358-OCT. 22, 2004

21 USC 802 note.

(d) Effective Date.—The amendments made by this section shall take effect 90 days after the date of enactment of this Act.

(2) consider amending the Federal sentencing guidelines to provide for increased penalties with respect to offenses involving anabolic steroids in a manner that reflects the seriousness of such offenses and the need to deter anabolic steroid trafficking and use; and

(3) take such other action that the Commission considers necessary to carry out this section.

SEC. 4. PREVENTION AND EDUCATION PROGRAMS.

Grants. 42 USC 290bb-25f.

(a) In General.—The Secretary of Health and Human Services (referred to in this Act as the “Secretary”) shall award grants to public and nonprofit private entities to enable such entities to carry out science-based education programs in elementary and secondary schools to highlight the harmful effects of anabolic steroids.

(b) Eligibility.—

(1) Application.—To be eligible for grants under subsection (a), an entity shall prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require.

(2) Preference.—In awarding grants under subsection (a), the Secretary shall give preference to applicants that intend to use grant funds to carry out programs based on—

(C) other programs determined to be effective by the National Institute on Drug Abuse.

(c) Use of Funds.—Amounts received under a grant under subsection (a) shall be used for education programs that will directly communicate with teachers, principals, coaches, as well as elementary and secondary school children concerning the harmful effects of anabolic steroids.

(d) Authorization of Appropriations.—There is authorized to be appropriated to carry out this section, $15,000,000 for each of fiscal years 2005 through 2010.

SEC. 5. NATIONAL SURVEY ON DRUG USE AND HEALTH.

42 USC 290aa-4 note.

(a) In General.—The Secretary of Health and Human Services shall ensure that the National Survey on Drug Use and Health includes questions concerning the use of anabolic steroids.

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PUBLIC LAW 108-358-OCT. 22, 2004ΆΆΆΆ118 STAT. 1665

(b) Authorization of Appropriations.—There is authorized to be appropriated to carry out this section, $1,000,000 for each of fiscal years 2005 through 2010.

Approved October 22, 2004.

LEGISLATIVE HISTORY—S. 2195 (H.R. 3866):

HOUSE REPORTS: No. 108–461, Pt. 1 (Comm. on the Judiciary) and Pt. 2 (Comm. on Energy and Commerce), both accompanying H.R. 3866.

CONGRESSIONAL RECORD, Vol. 150 (2004):

Oct. 6, considered and passed Senate.

Oct. 8, considered and passed House.

[Page 1706]

Appendix C: Title VII

[Page 1707]

Title VII of the Civil Rights Act of 1964

EDITOR'S NOTE: The following is the text of Title VII of the Civil Rights Act of 1964 (Pub. L. 88–352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act of 1991 (Pub. L. 102–166) (CRA) and the Lily Ledbetter Fair Pay Act of 2009 (Pub. L. 111–2) amend several sections of Title VII. In addition, section 102 of the CRA (which is printed elsewhere in this publication) amends the Revised Statutes by adding a new section following section 1977 (42 U.S.C. 1981), to provide for the recovery of compensatory and punitive damages in cases of intentional violations of Title VII, the Americans with Disabilities Act of 1990, and section 501 of the Rehabilitation Act of 1973. Cross references to Title VII as enacted appear in italics following each section heading. Editor's notes also appear in italics.

An Act

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Civil Rights Act of 1964”.

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5 [United States Code]), or

(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26 [the Internal Revenue Code of 1986], except that during the first year after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], persons having fewer than twenty–five employees (and their agents) shall not be considered employers.

[Page 1708]

(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty–five or more during the first year after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], or (B) fifteen or more thereafter, and such labor organization-

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.];

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.

(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

[Page 1709]

(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor–Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.], and further includes any governmental industry, business, or activity.

(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].

(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment–related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

(l) The term “complaining party” means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter. (m) The term “demonstrates” means meets the burdens of production and persuasion. (n) The term “respondent” means an employer, employment agency, labor organization, joint labor -management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e-16 of this title.

(a) Inapplicability of subchapter to certain aliens and employees of religious entities This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(b) Compliance with statute as violative of foreign law

[Page 1710]

It shall not be unlawful under section 2000e-2 or 2000e-3 of this title [section 703 or 704] for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labor–management committee controlling apprenticeship or other training or retraining (including on–the–job training programs) to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located.

(c) Control of corporation incorporated in foreign country

(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title [section 703 or 704] engaged in by such corporation shall be presumed to be engaged in by such employer.

(2) Sections 2000e-2 and 2000e-3 of this title [sections 703 and 704] shall not apply with respect to the foreign operations of anemployer that is a foreign person not controlled by an American employer.

(3) For purposes of this subsection, the determination of whether an employer controls a corporation shall be based on-

(A) the interrelation of operations;

(B) the common management;

(C) the centralized control of labor relations; and

(D) the common ownership or financial control, of the employer and the corporation.

UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000e-2. [Section 703]

(a) Employer practices

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would [Page 1711]deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

(b) Employment agency practices

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) Labor organization practices

It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) Training programs

It shall be an unlawful employment practice for any employer, labor organization, or joint labor—management committee controlling apprenticeship or other training or retraining, including on—the—job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

(f) Members of Communist Party or Communist-action or Communist-front organizations

As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor- management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist–action or Communist–front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

(g) National security

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any [Page 1712]position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [section 6(d) of the Labor Standards Act of 1938, as amended].

(i) Businesses or enterprises extending preferential treatment to Indians Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor–management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

(k) Burden of proof in disparate impact cases

[Page 1713]

(1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

(1) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

(1) (A) Notwithstanding any other provision of law, and except as provided in paragraph

(2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).

(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws-

(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had-

(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and

(II) a reasonable opportunity to present objections to such judgment or order; or

(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.

(2) Nothing in this subsection shall be construed to-

(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;

(B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;

(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

(D) authorize or permit the denial to any person of the due process of law required by the Constitution.

(3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of Title 28 [United States Code].

OTHER UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000e-3. [Section 704]

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor–management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment [Page 1715]practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

(b) Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor–management committee controlling apprenticeship or other training or retraining, including on–the–job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor–management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party. Members of the Commission shall be appointed by the President by and with the advice and consent of the Senate for a term of five years. Any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed, and all members of the Commission shall continue to serve until their successors are appointed and qualified, except that no such member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and, except as provided in subsection (b) of this section, shall appoint, in accordance with the provisions of Title 5 [United States Code] governing appointments in the competitive service, such officers, agents, attorneys, administrative law judges [originally, hearing examiners], and employees as he deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of Title 5 [United States Code], relating to classification and General Schedule pay rates: Provided, That assignment, removal, and compensation of [Page 1716]administrative law judges [originally, hearing examiners] shall be in accordance with sections 3105, 3344, 5372, and 7521 of Title 5 [United States Code].

(b) General Counsel; appointment; term; duties; representation by attorneys and Attorney General

(1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 2000e-5 and 2000e-6 of this title [sections 706 and 707]. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the Commission on the appointment and supervision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified.

(2) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission is a party in the Supreme Court pursuant to this subchapter.

(c) Exercise of powers during vacancy; quorum

A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum.

(d) Seal; judicial notice

The Commission shall have an official seal which shall be judicially noticed.

(e) Reports to Congress and the President

The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken [originally, the names, salaries, and duties of all individuals in its employ] and the moneys it has disbursed. It shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable.

(f) Principal and other offices

The principal office of the Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this subchapter.

(g) Powers of Commission

The Commission shall have power-

(1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals;

(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;

(3) to furnish to persons subject to this subchapter such technical assistance as they may request to further their compliance with this subchapter or an order issued thereunder;

(4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to [Page 1717]cooperate in effectuating the provisions of this subchapter, to assist in such effectuation by conciliation or such other remedial action as is provided by this subchapter;

(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this subchapter and to make the results of such studies available to the public;

(6) to intervene in a civil action brought under section 2000e-5 of this title [section 706] by an aggrieved party against a respondent other than a government, governmental agency or political subdivision.

(h) Cooperation with other departments and agencies in performance of educational or promotional activities; outreach activities

(1) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities.

(2) In exercising its powers under this subchapter, the Commission shall carry out educational and outreach activities (including dissemination of information in languages other than English) targeted to-

(A) individuals who historically have been victims of employment discrimination and have not been equitably served by the Commission; and

(B) individuals on whose behalf the Commission has authority to enforce any other law prohibiting employment discrimination, concerning rights and obligations under this subchapter or such law, as the case may be.

(i) Personnel subject to political activity restrictions

All officers, agents, attorneys, and employees of the Commission shall be subject to the provisions of section 7324 of Title 5 [originally, section 9 of the Act of August 2, 1939, as amended (the Hatch Act)], notwithstanding any exemption contained in such section.

(j) Technical Assistance Training Institute

(1) The Commission shall establish a Technical Assistance Training Institute, through which the Commission shall provide technical assistance and training regarding the laws and regulations enforced by the Commission.

(2) An employer or other entity covered under this subchapter shall not be excused from compliance with the requirements of this subchapter because of any failure to receive technical assistance under this subsection.

(3) There are authorized to be appropriated to carry out this subsection such sums as may be necessary for fiscal year 1992.

(k) EEOC Education, Technical Assistance, and Training Revolving Fund

(1) There is hereby established in the Treasury of the United States a revolving fund to be known as the “EEOC Education, Technical Assistance, and Training Revolving Fund” (hereinafter in this subsection referred to as the “Fund”) and to pay the cost (including administrative and personnel expenses) of providing education, technical assistance, and training relating to laws administered by the Commission. Monies in the Fund shall be available without fiscal year limitation to the Commission for such purposes.

(2)(A) The Commission shall charge fees in accordance with the provisions of this paragraph to offset the costs of education, technical assistance, and training provided with monies in the Fund. Such fees for any education, technical assistance, or training–

(i) shall be imposed on a uniform basis on persons and entities receiving such education, assistance, or training,

(ii) shall not exceed the cost of providing such education, assistance, and training, and

[Page 1718]

(iii) with respect to each person or entity receiving such education, assistance, or training, shall bear a reasonable relationship to the cost of providing such education, assistance, or training to such person or entity.

(B) Fees received under subparagraph (A) shall be deposited in the Fund by the Commission.

(C) The Commission shall include in each report made under subsection (e) of this section information with respect to the operation of the Fund, including information, presented in the aggregate, relating to–

(i) the number of persons and entities to which the Commission provided education, technical assistance, or training with monies in the Fund, in the fiscal year for which such report is prepared,

(ii) the cost to the Commission to provide such education, technical assistance, or training to such persons and entities, and

(iii) the amount of any fees received by the Commission from such persons and entities for such education, technical assistance, or training.

(3) The Secretary of the Treasury shall invest the portion of the Fund not required to satisfy current expenditures from the Fund, as determined by the Commission, in obligations of the United States or obligations guaranteed as to principal by the United States. Investment proceeds shall be deposited in the Fund.

(4) There is hereby transferred to the Fund $1,000,000 from the Salaries and Expenses appropriation of the Commission.

ENFORCEMENT PROVISIONS

SEC. 2000e-5. [Section 706]

(a) Power of Commission to prevent unlawful employment practices The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title [section 703 or 704].

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on–the–job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor–management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after [Page 1719]such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge.

(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission; commencement of proceedings

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission

In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty–day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.

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(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system

(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the [Page 1721]charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found [Page 1722]within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28 [United States Code], the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.

(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

(2) (A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this Title [section 704(a)].

(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title [section 703(m)] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title [section 703(m)]; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

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(h) Provisions of chapter 6 of Title 29 not applicable to civil actions for prevention of unlawful practices

The provisions of chapter 6 of title 29 [the Act entitled “An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes,” approved March 23, 1932 (29 U.S.C. 105–115)] shall not apply with respect to civil actions brought under this section.

(i) Proceedings by Commission to compel compliance with judicial orders In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order.

(j) Appeals

Any civil action brought under this section and any proceedings brought under subsection (i) of this section shall be subject to appeal as provided in sections 1291 and 1292, Title 28 [United States Code].

(k) Attorney's fee; liability of Commission and United States for costs

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

CIVIL ACTIONS BY THE ATTORNEY GENERAL

SEC. 2000e-6. [Section 707]

(a) Complaint

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

(b) Jurisdiction; three-judge district court for cases of general public importance: hearing, determination, expedition of action, review by Supreme Court; single judge district court: hearing, determination, expedition of action

The district courts of the United States shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, and in any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a three–judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall [Page 1724]be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.

Effective two years after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the functions of the Attorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5 [United States Code], inconsistent with the provisions of this subsection. The Commission shall carry out such functions in accordance with subsections (d) and (e) of this section.

(d) Transfer of functions, etc., not to affect suits commenced pursuant to this section prior to date of transfer

Upon the transfer of functions provided for in subsection (c) of this section, in all suits commenced pursuant to this section prior to the date of such transfer, proceedings shall continue without abatement, all court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of America, the Attorney General, or the Acting Attorney General, as appropriate.

(e) Investigation and action by Commission pursuant to filing of charge of discrimination; procedure

Subsequent to March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the Commission shall haveauthority to investigate and act on a charge of a pattern or practice ofdiscrimination, whether filed by or on behalf of a person claiming to beaggrieved or by a member of the Commission. All such actions shall beconducted in accordance with the procedures set forth in section 2000e-5of this title [section 706].

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EFFECT ON STATE LAWS

SEC. 2000e-7. [Section 708]

Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

In connection with any investigation of a charge filed under section 2000e-5 of this title [section 706], the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.

(b) Cooperation with State and local agencies administering State fair employment practices laws; participation in and contribution to research and other projects; utilization of services; payment in advance or reimbursement; agreements and rescission of agreements

The Commission may cooperate with State and local agencies charged with the administration of State fair employment practices laws and, with the consent of such agencies, may, for the purpose of carrying out its functions and duties under this subchapter and within the limitation of funds appropriated specifically for such purpose, engage in and contribute to the cost of research and other projects of mutual interest undertaken by such agencies, and utilize the services of such agencies and their employees, and, notwithstanding any other provision of law, pay by advance or reimbursement such agencies and their employees for services rendered to assist the Commission in carrying out this subchapter. In furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall refrain from processing a charge in any cases or class of cases specified in such agreements or under which the Commission shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement of this subchapter.

(c) Execution, retention, and preservation of records; reports to Commission; training program records; appropriate relief from regulation or order for undue hardship; procedure for exemption; judicial action to compel compliance

Every employer, employment agency, and labor organization subject to this subchapter shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports there from as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the [Page 1726]enforcement of this subchapter or the regulations or orders thereunder. The Commission shall, by regulation, require each employer, labor organization, and joint labor–management committee subject to this subchapter which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of this subchapter, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applications were received, and to furnish to the Commission upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor–management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may apply to the Commission for an exemption from the application of such regulation or order, and, if such application for an exemption is denied, bring a civil action in the United States district court for the district where such records are kept. If the Commission or the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appropriate relief. If any person required to comply with the provisions of this subsection fails or refuses to do so, the United States district court for the district in which such person is found, resides, or transacts business, shall, upon application of the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision, have jurisdiction to issue to such person an order requiring him to comply.

(d) Consultation and coordination between Commission and interested State and Federal agencies in prescribing recordkeeping and reporting requirements; availability of information furnished pursuant to recordkeeping and reporting requirements; conditions on availability

In prescribing requirements pursuant to subsection (c) of this section, the Commission shall consult with other interested State and Federal agencies and shall endeavor to coordinate its requirements with those adopted by such agencies. The Commission shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained pursuant to subsection (c) of this section from any employer, employment agency, labor organization, or joint labor–management committee subject to the jurisdiction of such agency. Such information shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under State or local law involving such information. If this condition is violated by a recipient agency, the Commission may decline to honor subsequent requests pursuant to this subsection.

(e) Prohibited disclosures; penalties

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

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CONDUCT OF HEARINGS AND INVESTIGATIONS PURSUANT TO SECTION 161 OF Title 29

SEC. 2000e-9. [Section 710]

For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 [section 11 of the National Labor Relations Act] shall apply.

POSTING OF NOTICES; PENALTIES

SEC. 2000e-10. [Section 711]

(a) Every employer, employment agency, and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.

VETERANS' SPECIAL RIGHTS OR PREFERENCE

SEC. 2000e-11. [Section 712]

Nothing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans.

REGULATIONS; CONFORMITY OF REGULATIONS WITH ADMINISTRATIVE PROCEDURE PROVISIONS; RELIANCE ON INTERPRETATIONS AND INSTRUCTIONS OF COMMISSION

SEC. 2000e-12. [Section 713]

(a) The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter. Regulations issued under this section shall be in conformity with the standards and limitations of subchapter II of chapter 5 of Title 5 [originally, the Administrative Procedure Act].

(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, or (2) the failure of such person to publish and file any information required by any provision of this subchapter if he pleads and proves that he failed to publish and file such information in good faith, in conformity with the instructions of the Commission issued under this subchapter regarding the filing of such information. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect, or (B) after publishing or filing the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this subchapter.

[Page 1728]

APPLICATION TO PERSONNEL OF COMMISSION OF SECTIONS 111 AND 1114 OF TITLE 18; PUNISHMENT FOR VIOLATION OF SECTION 1114 OF TITLE 18

SEC. 2000e-13. [Section 714]

The provisions of sections 111 and 1114, Title 18 [United States Code], shall apply to officers, agents, and employees of the Commission in the performance of their official duties. Notwithstanding the provisions of sections 111 and 1114 of Title 18 [United States Code], whoever in violation of the provisions of section 1114 of such title kills a person while engaged in or on account of the performance of his official functions under this Act shall be punished by imprisonment for any term of years or for life.

TRANSFER OF AUTHORITY

[Administration of the duties of the Equal Employment Opportunity Coordinating Council was transferred to the Equal Employment Opportunity Commission effective July 1, 1978, under the President's Reorganization Plan of 1978.]

[Original introductory text: There shall be established an Equal Employment Opportunity Coordinating Council (hereinafter referred to in this section as the Council) composed of the Secretary of Labor, the Chairman of the Equal Employment Opportunity Commission, the Attorney General, the Chairman of the United States Civil Service Commission, and the Chairman of the United States Civil Rights Commission, or their respective delegates.]

The Equal Employment Opportunity Commission [originally, Council] shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal Government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies. On or before October 1 [originally, July 1] of each year, the Equal Employment Opportunity Commission [originally, Council] shall transmit to the President and to the Congress a report of its activities, together with such recommendations for legislative or administrative changes as it concludes are desirable to further promote the purposes of this section.

[Original text: (a) This title shall become effective one year after the date of its enactment.

(b) Notwithstanding subsection (a), sections of this title other than sections 703, 704, 706, and 707 shall become effective immediately.

(c)] The President shall, as soon as feasible after July 2, 1964 [the date of enactment of this title], convene one or more conferences for the purpose of enabling the leaders of [Page 1729]groups whose members will be affected by this subchapter to become familiar with the rights afforded and obligations imposed by its provisions, and for the purpose of making plans which will result in the fair and effective administration of this subchapter when all of its provisions become effective. The President shall invite the participation in such conference or conferences of (1) the members of the President's Committee on Equal Employment Opportunity, (2) the members of the Commission on Civil Rights, (3) representatives of State and local agencies engaged in furthering equal employment opportunity, (4) representatives of private agencies engaged in furthering equal employment opportunity, and (5) representatives of employers, labor organizations, and employment agencies who will be subject to this subchapter.

TRANSFER OF AUTHORITY

[Enforcement of Section 717 was transferred to the Equal Employment Opportunity Commission from the Civil Service Commission (Office of Personnel Management) effective January 1, 1979 under the President's Reorganization Plan No. 1 of 1978.]

All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5 [United States Code], in executive agencies [originally, other than the General Accounting Office] as defined in section 105 of Title 5 [United States Code] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission [originally, Civil Service Commission] shall-

[Page 1730]

(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment;

(2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and

(3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity.

The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. The plan submitted by each department, agency, and unit shall include, but not be limited to-

(1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and

(2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program. With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall be exercised by the Librarian of Congress.

(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant

Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission [originally, Civil Service Commission] upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission [originally, Civil Service Commission] on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title [section 706], in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

(d) Section 2000e-5(f) through (k) of this title applicable to civil actions

The provisions of section 2000e-5(f) through (k) of this title [section 706(f) through (k)], as applicable, shall govern civil actions brought hereunder, and the same interest to [Page 1731]compensate for delay in payment shall be available as in cases involving nonpublic parties.

(e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity

Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government.

(f) Section 2000e-5(e)(3) [Section 706(e)(3)] shall apply to complaints of discrimination in compensation under this section.

PROCEDURE FOR DENIAL, WITHHOLDING, TERMINATION, OR SUSPENSION OF GOVERNMENT CONTRACT SUBSEQUENT TO ACCEPTANCE BY GOVERNMENT OF AFFIRMATIVE ACTION PLAN OF EMPLOYER; TIME OF ACCEPTANCE OF PLAN

SEC. 2000e-17. [Section 718]

No Government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same facility within the past twelve months without first according such employer full hearing and adjudication under the provisions of section 554 of Title 5 [United States Code], and the following pertinent sections: Provided, That if such employer has deviated substantially from such previously agreed to affirmative action plan, this section shall not apply: Provided further, That for the purposes of this section an affirmative action plan shall be deemed to have been accepted by the Government at the time the appropriate compliance agency has accepted such plan unless within forty-five days thereafter the Office of Federal Contract Compliance has disapproved such plan.

Appendix D: Title IX

[Page 1732][Page 1733]

Title IX, Education Amendments of 1972

(Title 20 U.S.C. Sections 1681–1688)

Section 1681. Sex

(a) Prohibition against discrimination; exceptions. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:

(1) Classes of educational institutions subject to prohibition in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

(2) Educational institutions commencing planned change in admissions in regard to admissions to educational institutions, this section shall not apply (A) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education or (B) for seven years from the date an educational institution begins the process of changing from being an institution which admists only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education, whichever is the later;

(3) Educational institutions of religious organizations with contrary religious tenets this section shall not apply to any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;

(4) Educational institutions training individuals for military services or merchant marine this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;

(5) Public educational institutions with traditional and continuing admissions policy in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;

(6) Social fraternities or sororities; voluntary youth service organizations this section shall not apply to membership practices –

(A) of a social fraternity or social sorority which is exempt from taxation under section 501(a) of Title 26, the active membership of which consists primarily of students in attendance at an institution of higher education, or

(B) of the Young Men's Christian Association, Young Women's Christian Association; Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are so exempt, the membership of which has traditionally been limited to persons of one sex and principally to persons of less than nineteen years of age;

(A) any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

(B) any program or activity of any secondary school or educational institution specifically for–

(i) the promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

(ii) the selection of students to attend any such conference;

(8) Father-son or mother-daughter activities at educational institutions this section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and

(9) Institutions of higher education scholarship awards in “beauty” pageants this section shall not apply with respect to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received such award in any pageant in which the attainment of such award is based upon a combination of factors related to the personal appearance, poise, and talent of such individual and in which participation is limited to individuals of one sex only, so long as such pageant is in compliance with other nondiscrimination provisions of Federal law.

(b) Preferential or disparate treatment because of imbalance in participation or receipt of Federal benefits; statistical evidence of imbalance.

Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, that this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.

(c) Educational institution defined.

For the purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college or department.

Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing [Page 1735]rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, that no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.

Section 1683. Judicial Review

Any department or agency action taken pursuant to section 1682 of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section 1682 of this title, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with chapter 7 of title 5, United States Code, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of section 701 of that title.

No person in the United States shall, on the ground of blindness or severely impaired vision, be denied admission in any course of study by a recipient of Federal financial assistance for any education program or activity; but nothing herein shall be construed to require any such institution to provide any special services to such person because of his blindness or visual impairment.

Section 1685. Authority under other laws unaffected

Nothing in this chaper shall add to or detract from any existing authority with respect to any program or activity under which Federal financial assistance is extended by way of a contract of insurance or guaranty.

[Page 1736]

Section 1686. Interpretation with respect to living facilities

Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.

Section 1687. Interpretation of “program or activity”

For the purposes of this title, the term “program or activity” and “program” mean all of the operations of –

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributed such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section2854(a)(10) of this title, system of vocational education, or other school system;

(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship –

(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) any other entity which is established by two or more of the entities described in paragraph (1), (2) or (3); any part of which is extended Federal financial assistance, except that such term does not include any operation of an entity which is controlled by a religious organization if the application of section 1681 if this title to such operation would not be consistent with the religious tenets of such organization.

Section 1688. Neutrality with respect to abortion

Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion.

Appendix E: Uniform Athlete Agents Act (Utah)

[Page 1737]

UNIFORM ATHLETE AGENTS ACT

Title 15, Chapter 9

Utah Code Annotated 1953

As Amended by

Session Laws of Utah 2010

Issued May 11, 2010

[Page 1738]

UNIFORM ATHLETE AGENTS ACT

15-9-101. Title.

This chapter is known as the “Uniform Athlete Agents Act.”

15-9-102. Definitions.

As used in this chapter:

(1) “Agency contract” means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional-sports-services contract or an endorsement contract.

(2) “Athlete agent” means an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a studentathlete to enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, or grandparent of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization.

(3) “Athletic director” means an individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate.

(4) “Contact” means a communication, direct or indirect, between an athlete agent and a student-athlete, to recruit or solicit the student-athlete to enter into an agency contract.

(5) “Division” means the Division of Occupational and Professional Licensing created in Section 58-1-103.

(6) “Endorsement contract” means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance.

(7) “Intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association for the promotion or regulation of collegiate athletics.

(9) “Professional-sports-services contract” means an agreement under which an individual is employed or agrees to render services as a player on a professional sports team, with a professional sports organization, or as a professional athlete.

(10) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(11) “Registration” means registration as an athlete agent pursuant to this chapter.

(12) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(13) “Student-athlete” means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport. If an individual is permanently ineligible to participate in a particular intercollegiate sport, the individual is not a student-athlete for purposes [Page 1739]of that sport.

(1) (a) This chapter shall be administered by the division and is subject to the requirements of Title 58, Chapter 1, Division of Occupational and Professional Licensing Act, so long as the requirements of Title 58, Chapter 1, are not inconsistent with the requirements of this chapter.

(b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division may make rules necessary to implement this chapter.

(2) By acting as an athlete agent in this state, a nonresident individual appoints the director of the division as the individual's agent for service of process in any civil action in this state related to the individual's acting as an athlete agent in this state.

15-9-104. Athlete agents — Registration required — Void contracts.

(1) Except as otherwise provided in Subsection (2), an individual may not act as an athlete agent in this state without holding a certificate of registration under Section 15-9-106 or 15-9-108.

(2) Before being issued a certificate of registration, an individual may act as an athlete agent in this state for all purposes except signing an agency contract if:

(a) a student-athlete or another person acting on behalf of the student-athlete initiates communication with the individual; and

(b) within seven days after an initial act as an athlete agent, the individual submits an application for registration as an athlete agent in this state.

(3) An agency contract resulting from conduct in violation of this section is void and the athlete agent shall return any consideration received under this contract.

15-9-105. Registration as an athlete agent — Form — Requirements.

(1) An applicant for registration shall submit an application for registration to the division in a form prescribed by the division. An application filed under this section is a public record under Title 63G, Chapter 2, Government Records Access and Management Act. The application must be in the name of an individual and, except as otherwise provided in Subsection (2), signed or otherwise authenticated by the applicant under penalty of perjury and state or contain:

(a) the name of the applicant and the address of the applicant's principal place of business;

(b) the name of the applicant's business or employer, if applicable;

(c) any business or occupation engaged in by the applicant for the five years immediately preceding the date of submission of the application;

(d) a description of the applicant's:

(i) formal training as an athlete agent;

(ii) practical experience as an athlete agent; and

(iii) educational background relating to the applicant's activities as an athlete agent;

(e) the names and addresses of three individuals not related to the applicant who are willing to serve as references;

(f) the name, sport, and last-known team for each individual for whom the applicant acted as an athlete agent during the five years next preceding the date of submission of the application;

[Page 1740]

(g) the names and addresses of all persons who are:

(i) with respect to the athlete agent's business if it is not a corporation, the partners, members, officers, managers, associates, or profit-sharers of the business; and

(ii) with respect to a corporation employing the athlete agent, the officers, directors, and any shareholder of the corporation having an interest of 5% or greater;

(h) whether the applicant or any person named pursuant to Subsection (1)(g) has been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony, and identify the crime;

(i) whether there has been any administrative or judicial determination that the applicant or any person named pursuant to Subsection (1)(g) has made a false, misleading, deceptive, or fraudulent representation;

(j) any instance in which the conduct of the applicant or any person named pursuant to Subsection (1)(g) resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event on a student-athlete or educational institution;

(k) any sanction, suspension, or disciplinary action taken against the applicant or any person named pursuant to Subsection (1)(g) arising out of occupation or professional conduct; and

(l) whether there has been any denial of an application for, suspension or revocation of, or refusal to renew, the registration or licensure of the applicant or any person named pursuant to Subsection (1)(g) as an athlete agent in any state.

(2) An individual who has submitted an application for, and holds a certificate of, registration or licensure as an athlete agent in another state, may submit a copy of the application and certificate in lieu of submitting an application in the form prescribed pursuant to Subsection (1). The division shall accept the application and the certificate from the other state as an application for registration in this state if the application to the other state:

(a) was submitted in the other state within six months immediately preceding the submission of the application in this state and the applicant certifies that the information contained in the application is current;

(b) contains information substantially similar to or more comprehensive than that required in an application submitted in this state; and

(c) was signed by the applicant under penalty of perjury.

15-9-106. Certificate of registration — Issuance or denial — Renewal.

(1) Except as otherwise provided in Subsection (2), the division shall issue a certificate of registration to an individual who complies with Subsection 15-9-105(1) or whose application has been accepted under Subsection 15-9-105(2).

(2) The division may refuse to issue a certificate of registration if the division determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant's fitness to act as an athlete agent. In making the determination, the division may consider whether the applicant has:

(a) been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony;

(b) made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent;

[Page 1741]

(c) engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity;

(d) engaged in conduct prohibited by Section 15-9-114;

(e) had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state;

(f) engaged in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student-athlete or educational institution; or

(g) engaged in conduct that significantly, adversely reflects on the applicant's credibility, honesty, or integrity.

(3) In making a determination under Subsection (2), the division shall consider:

(a) how recently the conduct occurred;

(b) the nature of the conduct and the context in which it occurred; and

(c) any other relevant conduct of the applicant.

(4) An athlete agent may apply to renew a registration by submitting an application for renewal in a form prescribed by the division. An application filed under this section is a public record under Title 63G, Chapter 2, Government Records Access and Management Act. The application for renewal must be signed by the applicant under penalty of perjury and must contain current information on all matters required in an original registration.

(5) An individual who has submitted an application for renewal of registration or licensure in another state, in lieu of submitting an application for renewal in the form prescribed pursuant to Subsection (4), may file a copy of the application for renewal and a valid certificate of registration or licensure from the other state. The division shall accept the application for renewal from the other state as an application for renewal in this state if the application to the other state:

(a) was submitted in the other state within six months immediately preceding the filing in this state and the applicant certifies the information contained in the application for renewal is current;

(b) contains information substantially similar to or more comprehensive than that required in an application for renewal submitted in this state; and

(c) was signed by the applicant under penalty of perjury.

(6) A certificate of registration or a renewal of a registration is valid for two years.

15-9-107. Suspension, revocation, or refusal to renew registration.

(1) The division may suspend, revoked, or refuse to renew a registration for conduct that would have justified denial of registration under Subsection 15-9-106 (2).

(2) The division may suspend, revoke, or refuse to renew a certificate of registration only after proper notice and an opportunity for a hearing. Title 63G, Chapter 4, Administrative Procedures Act, applies to this chapter.

15-9-108. Temporary registration.

The division may issue a temporary certificate of registration while an application for registration or renewal of registration is pending.

[Page 1742]

15-9-109. Registration and renewal fees.

(1) An application for registration or renewal of registration must be accompanied by a fee in an amount determined by the division in accordance with Section 63J-1-504.

(2) The division shall establish fees for:

(a) an initial application for registration;

(b) an application for registration based upon a certificate of registration or licensure issued by another state;

(c) an application for renewal of registration; and

(d) an application for renewal of registration based upon an application for renewal of registration or licensure submitted in another state.

15-9-110. Required form of contract.

(1) An agency contract must be in a record, signed or otherwise authenticated by the parties.

(2) An agency contract must state or contain:

(a) the amount and method of calculating the consideration to be paid by the student-athlete for services to be provided by the athlete agent under the contract and any other consideration the athlete agent has received or will receive from any other source for entering into the contract or for providing the services;

(b) the name of any person not listed in the application for registration or renewal of registration who will be compensated because the student-athlete signed the agency contract;

(c) a description of any expenses that the student-athlete agrees to reimburse;

(d) a description of the services to be provided to the student-athlete;

(e) the duration of the contract; and

(f) the date of execution.

(3) An agency contract must contain, in close proximity to the signature of the student-athlete, a conspicuous notice in boldface type in capital letters stating:

WARNING TO STUDENT-ATHLETE IF YOU SIGN THIS CONTRACT:

(1) YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;

(2) IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND

(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.

(4) An agency contract that does not conform to this section is voidable by the student-athlete. If a student-athlete voids an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

(5) The athlete agent shall give a record of the signed or otherwise authenticated agency contract to the student-athlete at the time of execution.

[Page 1743]

15-9-111. Notice to educational institution.

(1) Within 72 hours after entering into an agency contract or before the next scheduled athletic event in which the student-athlete may participate, whichever occurs first, the athlete agent shall give notice in a record of the existence of the contract to the athletic director of the educational institution at which the student-athlete is enrolled or the athlete agent has reasonable grounds to believe the student-athlete intends to enroll.

(2) Within 72 hours after entering into an agency contract or before the next athletic event in which the student-athlete may participate, whichever occurs first, the student-athlete shall inform the athletic director of the educational institution at which the student-athlete is enrolled that he or she has entered into an agency contract.

15-9-112. Student-athlete's right to cancel.

(1) A student-athlete may cancel an agency contract by giving notice of the cancellation to the athlete agent in a record within 14 days after the contract is signed.

(2) A student-athlete may not waive the right to cancel an agency contract.

(3) If a student-athlete cancels an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

15-9-113. Required records.

(1) An athlete agent shall retain the following records for a period of five years:

(a) the name and address of each individual represented by the athlete agent;

(b) any agency contract entered into by the athlete agent; and

(c) any direct costs incurred by the athlete agent in the recruitment or solicitation of a student-athlete to enter into an agency contract.

(2) Records required by Subsection (1) to be retained are open to inspection by the division during normal business hours.

15-9-114. Prohibited conduct.

(1) An athlete agent, with the intent to induce a student-athlete to enter into an agency contract, may not:

(a) give any materially false or misleading information or make a materially false promise or representation;

(b) furnish anything of value to a student-athlete before the student-athlete enters into the agency contract; or

[Page 1744]

(c) furnish anything of value to any individual other than the student-athlete or another registered athlete agent.

(2) An athlete agent may not intentionally:

(a) initiate contact with a student-athlete unless registered under this chapter;

(b) refuse or fail to retain or permit inspection of the records required to be retained by Section 15-9-113;

(c) fail to register when required by Section 15-9-104;

(d) provide materially false or misleading information in an application for registration or renewal of registration;

(e) predate or postdate an agency contract; or

(f) fail to notify a student-athlete before the student-athlete signs or otherwise authenticates an agency contract for a particular sport that the signing or authentication may make the student-athlete ineligible to participate as a student-athlete in that sport.

15-9-115. Criminal penalties.

An athlete agent who violates Section 15-9-114 is guilty of a class A misdemeanor.

15-9-116. Civil remedies.

(1) An educational institution has a right of action against an athlete agent or a former student-athlete for damages caused by a violation of this chapter. In an action under this section, the court may award to the prevailing party costs and reasonable attorney's fees.

(2) Damages of an educational institution under Subsection (1) include losses and expenses incurred because, as a result of the conduct of an athlete agent or former student-athlete, the educational institution was injured by a violation of this chapter or was penalized, disqualified, or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions likely to be imposed by such an organization.

(3) A right of action under this section does not accrue until the educational institution discovers or by the exercise of reasonable diligence would have discovered the violation by the athlete agent or former student-athlete.

(4) Any liability of the athlete agent or the former student-athlete under this section is several and not joint.

(5) This chapter does not restrict rights, remedies, or defenses of any person under law or equity.

15-9-117. Civil and administrative penalty.

(1) The division may assess a civil penalty against an athlete agent not to exceed $25,000 for a violation of this chapter.

(2) An administrative penalty collected under Subsection (1) shall be deposited into the Commerce Service Fund created in Section 13-1-2.

15-9-118. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

15-9-119. Electronic Signatures in Global and National Commerce Act.

The provisions of this chapter governing the legal effect, validity, or enforceability of electronic records or signatures, and of contracts formed or performed with the use of such records or signatures conform to the requirements of Section 102 of the Electronic Signatures in Global and National Commerce Act, Pub.L. No 106-229, 114 Stat.464 (2000), and supercede, modify, and limit the Electronic Signatures in Global and National Commerce Act.

Appendix F: Madrid Protocol

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PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS

Adopted at Madrid on June 27, 1989, as amended on October 3, 2006, and on November 12, 2007

List of the Articles of the Protocol

Article 1:

Membership in the Madrid Union

Article 2:

Securing Protection through International Registration

Article 3:

International Application

Article 3bis:

Territorial Effect

Article 3ter:

Request for “Territorial Extension”

Article 4:

Effects of International Registration

Article 4bis:

Replacement of a National or Regional Registration by an International Registration

Article 5:

Refusal and Invalidation of Effects of International Registration in Respect of Certain Contracting Parties

Article 5bis:

Documentary Evidence of Legitimacy of Use of Certain Elements of the Mark

Article 5ter:

Copies of Entries in International Register; Searches for Anticipations; Extracts from International Register

Article 6:

Period of Validity of International Registration; Dependence and Independence of International Registration

Article 7:

Renewal of International Registration

Article 8:

Fees for International Application and Registration

Article 9:

Recordal of Change in the Ownership of an International Registration

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Article 9quater:

Common Office of Several Contracting States

Article 9quinquies:

Transformation of an International Registration into National or Regional Applications

Article 9sexies:

Relations Between States Party to both this Protocol and the Madrid (Stockholm) Agreement

Article 10:

Assembly

Article 11:

International Bureau

Article 12:

Finances

Article 13:

Amendment of Certain Articles of the Protocol

Article 14:

Becoming Party to the Protocol; Entry into Force

Article 15:

Denunciation

Article 16:

Signature; Languages; Depositary Functions

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Article 1

Membership in the Madrid Union

The States party to this Protocol (hereinafter referred to as “the Contracting States”), even where they are not party to the Madrid Agreement Concerning the International Registration of Marks as revised at Stockholm in 1967 and as amended in 1979 (hereinafter referred to as “the Madrid (Stockholm) Agreement”), and the organizations referred to in Article 14(1)(b) which are party to this Protocol (hereinafter referred to as “the Contracting Organizations”) shall be members of the same Union of which countries party to the Madrid (Stockholm) Agreement are members. Any reference in this Protocol to “Contracting Parties” shall be construed as a reference to both Contracting States and Contracting Organizations.

Article 2

Securing Protection through International Registration

(1) Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application (hereinafter referred to as “the basic application”) or that registration (hereinafter referred to as “the basic registration”) stands may, subject to the provisions of this Protocol, secure protection for his mark in the territory of the Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as “the international registration,” “the International Register,” “the International Bureau” and “the Organization,” respectively), provided that,

(i) where the basic application has been filed with the Office of a Contracting State or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of that Contracting State, or is domiciled, or has a real and effective industrial or commercial establishment, in the said Contracting State,

(ii) where the basic application has been filed with the Office of a Contracting Organization or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of a State member of that Contracting Organization, or is domiciled, or has a real and effective industrial or commercial establishment, in the territory of the said Contracting Organization.

(2) The application for international registration (hereinafter referred to as “the international application”) shall be filed with the International Bureau through the intermediary of the Office with which the basic application was filed or by which the basic registration was made (hereinafter referred to as “the Office of origin”), as the case may be.

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(3) Any reference in this Protocol to an “Office” or an “Office of a Contracting Party” shall be construed as a reference to the office that is in charge, on behalf of a Contracting Party, of the registration of marks, and any reference in this Protocol to “marks” shall be construed as a reference to trademarks and service marks.

(4) For the purposes of this Protocol, “territory of a Contracting Party” means, where the Contracting Party is a State, the territory of that State and, where the Contracting Party is an intergovernmental organization, the territory in which the constituting treaty of that intergovernmental organization applies.

Article 3

International Application

(1) Every international application under this Protocol shall be presented on the form prescribed by the Regulations. The Office of origin shall certify that the particulars appearing in the international application correspond to the particulars appearing, at the time of the certification, in the basic application or basic registration, as the case may be. Furthermore, the said Office shall indicate,

(i) in the case of a basic application, the date and number of that application,

(ii) in the case of a basic registration, the date and number of that registration as well as the date and number of the application from which the basic registration resulted.

The Office of origin shall also indicate the date of the international application.

(2) The applicant must indicate the goods and services in respect of which protection of the mark is claimed and also, if possible, the corresponding class or classes according to the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks. If the applicant does not give such indication, the International Bureau shall classify the goods and services in the appropriate classes of the said classification. The indication of classes given by the applicant shall be subject to control by the International Bureau, which shall exercise the said control in association with the Office of origin. In the event of disagreement between the said Office and the International Bureau, the opinion of the latter shall prevail.

(3) If the applicant claims color as a distinctive feature of his mark, he shall be required

(i) to state the fact, and to file with his international application a notice specifying the color or the combination of colors claimed;

(ii) to append to his international application copies in color of the said mark, which shall be attached to the notifications given by the International Bureau; the number of such copies shall be fixed by the Regulations.

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(4) The International Bureau shall register immediately the marks filed in accordance with Article 2. The international registration shall bear the date on which the international application was received in the Office of origin, provided that the international application has been received by the International Bureau within a period of two months from that date. If the international application has not been received within that period, the international registration shall bear the date on which the said international application was received by the International Bureau. The International Bureau shall notify the international registration without delay to the Offices concerned. Marks registered in the International Register shall be published in a periodical gazette issued by the International Bureau, on the basis of the particulars contained in the international application.

(5) With a view to the publicity to be given to marks registered in the International Register, each Office shall receive from the International Bureau a number of copies of the said gazette free of charge and a number of copies at a reduced price, under the conditions fixed by the Assembly referred to in Article 10 (hereinafter referred to as “the Assembly”). Such publicity shall be deemed to be sufficient for the purposes of all the Contracting Parties, and no other publicity may be required of the holder of the international registration.

Article 3 bis

Territorial Effect

The protection resulting from the international registration shall extend to any Contracting Party only at the request of the person who files the international application or who is the holder of the international registration. However, no such request can be made with respect to the Contracting Party whose Office is the Office of origin.

Article 3 ter

Request for “Territorial Extension”

(1) Any request for extension of the protection resulting from the international registration to any Contracting Party shall be specially mentioned in the international application.

(2) A request for territorial extension may also be made subsequently to the international registration. Any such request shall be presented on the form prescribed by the Regulations. It shall be immediately recorded by the International Bureau, which shall notify such recordal without delay to the Office or Offices concerned. Such recordal shall be published in the periodical gazette of the International Bureau. Such territorial extension shall be effective from the date on which it has been recorded in the International Register; it shall cease to be valid on the expiry of the international registration to which it relates.

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Article 4

Effects of International Registration

(1) (a) From the date of the registration or recordal effected in accordance with the provisions of Articles 3 and 3ter, the protection of the mark in each of the Contracting Parties concerned shall be the same as if the mark had been deposited direct with the Office of that Contracting Party. If no refusal has been notified to the International Bureau in accordance with Article 5(1) and (2) or if a refusal notified in accordance with the said Article has been withdrawn subsequently, the protection of the mark in the Contracting Party concerned shall, as from the said date, be the same as if the mark had been registered by the Office of that Contracting Party.

(b) The indication of classes of goods and services provided for in Article 3 shall not bind the Contracting Parties with regard to the determination of the scope of the protection of the mark.

(2) Every international registration shall enjoy the right of priority provided for by Article 4 of the Paris Convention for the Protection of Industrial Property, without it being necessary to comply with the formalities prescribed in Section D of that Article.

Article 4 bis

Replacement of a National or Regional Registration by an International Registration

(1) Where a mark that is the subject of a national or regional registration in the Office of a Contracting Party is also the subject of an international registration and both registrations stand in the name of the same person, the international registration is deemed to replace the national or regional registration, without prejudice to any rights acquired by virtue of the latter, provided that

(i) the protection resulting from the international registration extends to the said Contracting Party under Article 3ter(1) or (2),

(ii) all the goods and services listed in the national or regional registration are also listed in the international registration in respect of the said Contracting Party,

(iii) such extension takes effect after the date of the national or regional registration.

(2) The Office referred to in paragraph (1) shall, upon request, be required to take note in its register of the international registration.

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Article 5

Refusal and Invalidation of Effects of International Registration in Respect of Certain Contracting Parties

(1) Where the applicable legislation so authorizes, any Office of a Contracting Party which has been notified by the International Bureau of an extension to that Contracting Party, under Article 3ter(1) or (2), of the protection resulting from the international registration shall have the right to declare in a notification of refusal that protection cannot be granted in the said Contracting Party to the mark which is the subject of such extension. Any such refusal can be based only on the grounds which would apply, under the Paris Convention for the Protection of Industrial Property, in the case of a mark deposited direct with the Office which notifies the refusal. However, protection may not be refused, even partially, by reason only that the applicable legislation would permit registration only in a limited number of classes or for a limited number of goods or services.

(2) (a) Any Office wishing to exercise such right shall notify its refusal to the International Bureau, together with a statement of all grounds, within the period prescribed by the law applicable to that Office and at the latest, subject to subparagraphs (b) and (c), before the expiry of one year from the date on which the notification of the extension referred to in paragraph (1) has been sent to that Office by the International Bureau.

(b) Notwithstanding subparagraph (a), any Contracting Party may declare that, for international registrations made under this Protocol, the time limit of one year referred to in subparagraph (a) is replaced by 18 months.

(c) Such declaration may also specify that, when a refusal of protection may result from an opposition to the granting of protection, such refusal may be notified by the Office of the said Contracting Party to the International Bureau after the expiry of the 18-month time limit. Such an Office may, with respect to any given international registration, notify a refusal of protection after the expiry of the 18–month time limit, but only if

(i) it has, before the expiry of the 18-month time limit, informed the International Bureau of the possibility that oppositions may be filed after the expiry of the 18-month time limit, and

(ii) the notification of the refusal based on an opposition is made within a time limit of one month from the expiry of the opposition period and, in any case, not later than seven months from the date on which the opposition period begins.

(d) Any declaration under subparagraphs (b) or (c) may be made in the instruments referred to in Article 14(2), and the effective date of the declaration shall be the same as the date of entry into force of this Protocol with respect to the State or intergovernmental organization having made the declaration. Any such declaration may also be made later, in which case the declaration shall have effect three months after its receipt by the Director General of the Organization (hereinafter referred to as “the Director General”), or at any later date indicated in the declaration, in respect of any international registration whose date is the same as or is later than the effective date of the declaration.

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(e) Upon the expiry of a period often years from the entry into force of this Protocol, the Assembly shall examine the operation of the system established by subparagraphs (a) to (d). Thereafter, the provisions of the said subparagraphs may be modified by a unanimous decision of the Assembly∗.

(3) The International Bureau shall, without delay, transmit one of the copies of the notification of refusal to the holder of the international registration. The said holder shall have the same remedies as if the mark had been deposited by him direct with the Office which has notified its refusal. Where the International Bureau has received information under paragraph (2)(c)(i), it shall, without delay, transmit the said information to the holder of the international registration.

(4) The grounds for refusing a mark shall be communicated by the International Bureau to any interested party who may so request.

(5) Any Office which has not notified, with respect to a given international registration, any provisional or final refusal to the International Bureau in accordance with paragraphs (1) and (2) shall, with respect to that international registration, lose the benefit of the right provided for in paragraph (1).

(6) Invalidation, by the competent authorities of a Contracting Party, of the effects, in the territory of that Contracting Party, of an international registration may not be pronounced without the holder of such international registration having, in good time, been afforded the opportunity of defending his rights. Invalidation shall be notified to the International Bureau.

Article 5bis

Documentary Evidence of Legitimacy of Use of Certain Elements of the Mark

Documentary evidence of the legitimacy of the use of certain elements incorporated in a mark, such as armorial bearings, escutcheons, portraits, honorary distinctions, titles, trade names, names of persons other than the name of the applicant, or other like inscriptions, which might be required by the Offices of the Contracting Parties shall be exempt from any legalization as well as from any certification other than that of the Office of origin.

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Article 5 ter

Copies of Entries in International Register; Searches for Anticipations; Extracts from International Register

(1) The International Bureau shall issue to any person applying therefor, upon the payment of a fee fixed by the Regulations, a copy of the entries in the International Register concerning a specific mark.

(2) The International Bureau may also, upon payment, undertake searches for anticipations among marks that are the subject of international registrations.

(3) Extracts from the International Register requested with a view to their production in one of the Contracting Parties shall be exempt from any legalization.

Article 6

Period of Validity of International Registration; Dependence and Independence of International Registration

(1) Registration of a mark at the International Bureau is effected for ten years, with the possibility of renewal under the conditions specified in Article 7.

(2) Upon expiry of a period of five years from the date of the international registration, such registration shall become independent of the basic application or the registration resulting therefrom, or of the basic registration, as the case may be, subject to the following provisions.

(3) The protection resulting from the international registration, whether or not it has been the subject of a transfer, may no longer be invoked if, before the expiry of five years from the date of the international registration, the basic application or the registration resulting therefrom, or the basic registration, as the case may be, has been withdrawn, has lapsed, has been renounced or has been the subject of a final decision of rejection, revocation, cancellation or invalidation, in respect of all or some of the goods and services listed in the international registration. The same applies if

(i) an appeal against a decision refusing the effects of the basic application,

(ii) an action requesting the withdrawal of the basic application or the revocation, cancellation or invalidation of the registration resulting from the basic application or of the basic registration, or

(iii) an opposition to the basic application [Page 1754]results, after the expiry of the five-year period, in a final decision of rejection, revocation, cancellation or invalidation, or ordering the withdrawal, of the basic application, or the registration resulting therefrom, or the basic registration, as the case may be, provided that such appeal, action or opposition had begun before the expiry of the said period. The same also applies if the basic application is withdrawn, or the registration resulting from the basic application or the basic registration is renounced, after the expiry of the five-year period, provided that, at the time of the withdrawal or renunciation, the said application or registration was the subject of a proceeding referred to in item (i), (ii) or (iii) and that such proceeding had begun before the expiry of the said period.

(4) The Office of origin shall, as prescribed in the Regulations, notify the International Bureau of the facts and decisions relevant under paragraph (3), and the International Bureau shall, as prescribed in the Regulations, notify the interested parties and effect any publication accordingly. The Office of origin shall, where applicable, request the International Bureau to cancel, to the extent applicable, the international registration, and the International Bureau shall proceed accordingly.

Article 7

Renewal of International Registration

(1) Any international registration may be renewed for a period often years from the expiry of the preceding period, by the mere payment of the basic fee and, subject to Article 8(7), of the supplementary and complementary fees provided for in Article 8(2).

(2) Renewal may not bring about any change in the international registration in its latest form.

(3) Six months before the expiry of the term of protection, the International Bureau shall, by sending an unofficial notice, remind the holder of the international registration and his representative, if any, of the exact date of expiry.

(4) Subject to the payment of a surcharge fixed by the Regulations, a period of grace of six months shall be allowed for renewal of the international registration.

Article 8

Fees for International Application and Registration

(1) The Office of origin may fix, at its own discretion, and collect, for its own benefit, a fee which it may require from the applicant for international registration or from the holder of the international registration in connection with the filing of the international application or the renewal of the international registration.

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(2) Registration of a mark at the International Bureau shall be subject to the advance payment of an international fee which shall, subject to the provisions of paragraph (7)(a), include,

(ii) a supplementary fee for each class of the International Classification, beyond three, into which the goods or services to which the mark is applied will fall;

(iii) a complementary fee for any request for extension of protection under Article 3ter.

(3) However, the supplementary fee specified in paragraph (2)(ii) may, without prejudice to the date of the international registration, be paid within the period fixed by the Regulations if the number of classes of goods or services has been fixed or disputed by the International Bureau. If, upon expiry of the said period, the supplementary fee has not been paid or the list of goods or services has not been reduced to the required extent by the applicant, the international application shall be deemed to have been abandoned.

(4) The annual product of the various receipts from international registration, with the exception of the receipts derived from the fees mentioned in paragraph (2)(ii) and (iii), shall be divided equally among the Contracting Parties by the International Bureau, after deduction of the expenses and charges necessitated by the implementation of this Protocol.

(5) The amounts derived from the supplementary fees provided for in paragraph (2)(ii) shall be divided, at the expiry of each year, among the interested Contracting Parties in proportion to the number of marks for which protection has been applied for in each of them during that year, this number being multiplied, in the case of Contracting Parties which make an examination, by a coefficient which shall be determined by the Regulations.

(6) The amounts derived from the complementary fees provided for in paragraph (2)(iii) shall be divided according to the same rules as those provided for in paragraph (5).

(7) (a) Any Contracting Party may declare that, in connection with each international registration in which it is mentioned under Article 3ter, and in connection with the renewal of any such international registration, it wants to receive, instead of a share in the revenue produced by the supplementary and complementary fees, a fee (hereinafter referred to as “the individual fee”) whose amount shall be indicated in the declaration, and can be changed in further declarations, but may not be higher than the equivalent of the amount which the said Contracting Party's Office would be entitled to receive from an applicant for a ten-year registration, or from the holder of a registration for a ten-year renewal of that registration, of the mark in the register of the said Office, the said amount being diminished by the savings resulting from the international procedure. Where such an individual fee is payable,

(i) no supplementary fees referred to in paragraph (2)(ii) shall be payable if only Contracting Parties which have made a declaration under this subparagraph are mentioned under Article 3ter, and

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(ii) no complementary fee referred to in paragraph (2)(iii) shall be payable in respect of any Contracting Party which has made a declaration under this subparagraph.

(b) Any declaration under subparagraph (a) may be made in the instruments referred to in Article 14(2), and the effective date of the declaration shall be the same as the date of entry into force of this Protocol with respect to the State or intergovernmental organization having made the declaration. Any such declaration may also be made later, in which case the declaration shall have effect three months after its receipt by the Director General, or at any later date indicated in the declaration, in respect of any international registration whose date is the same as or is later than the effective date of the declaration.

Article 9

Recordal of Change in the Ownership of an International Registration

At the request of the person in whose name the international registration stands, or at the request of an interested Office made ex officio or at the request of an interested person, the International Bureau shall record in the International Register any change in the ownership of that registration, in respect of all or some of the Contracting Parties in whose territories the said registration has effect and in respect of all or some of the goods and services listed in the registration, provided that the new holder is a person who, under Article 2(1), is entitled to file international applications.

Article 9 bis

Recordal of Certain Matters Concerning an International Registration

The International Bureau shall record in the International Register

(i) any change in the name or address of the holder of the international registration,

(ii) the appointment of a representative of the holder of the international registration and any other relevant fact concerning such representative,

(iii) any limitation, in respect of all or some of the Contracting Parties, of the goods and services listed in the international registration,

(iv) any renunciation, cancellation or invalidation of the international registration in respect of all or some of the Contracting Parties,

(v) any other relevant fact, identified in the Regulations, concerning the rights in a mark that is the subject of an international registration.

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Article 9 ter

Fees for Certain Recordals

Any recordal under Article 9 or under Article 9bis may be subject to the payment of a fee.

Article 9 quater

Common Office of Several Contracting States

(1) If several Contracting States agree to effect the unification of their domestic legislations on marks, they may notify the Director General

(i) that a common Office shall be substituted for the national Office of each of them, and

(ii) that the whole of their respective territories shall be deemed to be a single State for the purposes of the application of all or part of the provisions preceding this Article as well as the provisions of Articles 9quinquies and 9sexies.

(2) Such notification shall not take effect until three months after the date of the communication thereof by the Director General to the other Contracting Parties.

Article 9 quinquies

Transformation of an International Registration into National or Regional Applications

Where, in the event that the international registration is cancelled at the request of the Office of origin under Article 6(4), in respect of all or some of the goods and services listed in the said registration, the person who was the holder of the international registration files an application for the registration of the same mark with the Office of any of the Contracting Parties in the territory of which the international registration had effect, that application shall be treated as if it had been filed on the date of the international registration according to Article 3(4) or on the date of recordal of the territorial extension according to Article 3ter(2) and, if the international registration enjoyed priority, shall enjoy the same priority, provided that

(i) such application is filed within three months from the date on which the international registration was cancelled,

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(ii) the goods and services listed in the application are in fact covered by the list of goods and services contained in the international registration in respect of the Contracting Party concerned, and

(iii) such application complies with all the requirements of the applicable law, including the requirements concerning fees.

Article 9 sexies

Relations between States Party to both this Protocol and the Madrid (Stockholm) Agreement

(1) (a) This Protocol alone shall be applicable as regards the mutual relations of States party to both this Protocol and the Madrid (Stockholm) Agreement.

(b) Notwithstanding subparagraph (a), a declaration made under Article 5(2)(b), Article 5(2)(c) or Article 8(7) of this Protocol, by a State party to both this Protocol and the Madrid (Stockholm) Agreement, shall have no effect in the relations with another State party to both this Protocol and the Madrid (Stockholm) Agreement.

(2) The Assembly shall, after the expiry of a period of three years from September 1, 2008, review the application of paragraph (1)(b) and may, at any time thereafter, either repeal it or restrict its scope, by a three-fourths majority. In the vote of the Assembly, only those States which are party to both the Madrid (Stockholm) Agreement and this Protocol shall have the right to participate.

Article 10

Assembly

(1) (a) The Contracting Parties shall be members of the same Assembly as the countries party to the Madrid (Stockholm) Agreement.

(b) Each Contracting Party shall be represented in that Assembly by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Contracting Party which has appointed it, except for the travel expenses and the subsistence allowance of one delegate for each Contracting Party, which shall be paid from the funds of the Union.

(2) The Assembly shall, in addition to the functions which it has under the Madrid (Stockholm) Agreement, also

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(ii) give directions to the International Bureau concerning the preparation for conferences of revision of this Protocol, due account being taken of any comments made by those countries of the Union which are not party to this Protocol;

(iii) adopt and modify the provisions of the Regulations concerning the implementation of this Protocol;

(iv) perform such other functions as are appropriate under this Protocol.

(3) (a) Each Contracting Party shall have one vote in the Assembly. On matters concerning only countries that are party to the Madrid (Stockholm) Agreement, Contracting Parties that are not party to the said Agreement shall not have the right to vote, whereas, on matters concerning only Contracting Parties, only the latter shall have the right to vote.

(b) One-half of the members of the Assembly which have the right to vote on a given matter shall constitute the quorum for the purposes of the vote on that matter.

(c) Notwithstanding the provisions of subparagraph (b), if, in any session, the number of the members of the Assembly having the right to vote on a given matter which are represented is less than one-half but equal to or more than one-third of the members of the Assembly having the right to vote on that matter, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the conditions set forth hereinafter are fulfilled. The International Bureau shall communicate the said decisions to the members of the Assembly having the right to vote on the said matter which were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiry of this period, the number of such members having thus expressed their vote or abstention attains the number of the members which was lacking for attaining the quorum in the session itself, such decisions shall take effect provided that at the same time the required majority still obtains.

(d) Subject to the provisions of Articles 5(2)(e), 9sexies(2), 12 and 13(2), the decisions of the Assembly shall require two-thirds of the votes cast.

(e) Abstentions shall not be considered as votes.

(f) A delegate may represent, and vote in the name of, one member of the Assembly only.

(4) In addition to meeting in ordinary sessions and extraordinary sessions as provided for by the Madrid (Stockholm) Agreement, the Assembly shall meet in extraordinary session upon convocation by the Director General, at the request of one-fourth of the members of the Assembly having the right to vote on the matters proposed to be included in the agenda of the session. The agenda of such an extraordinary session shall be prepared by the Director General.

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Article 11

International Bureau

(1) International registration and related duties, as well as all other administrative tasks, under or concerning this Protocol, shall be performed by the International Bureau.

(2) (a) The International Bureau shall, in accordance with the directions of the Assembly, make the preparations for the conferences of revision of this Protocol.

(b) The International Bureau may consult with intergovernmental and international non-governmental organizations concerning preparations for such conferences of revision.

(c) The Director General and persons designated by him shall take part, without the right to vote, in the discussions at such conferences of revision.

(3) The International Bureau shall carry out any other tasks assigned to it in relation to this Protocol.

Article 12

Finances

As far as Contracting Parties are concerned, the finances of the Union shall be governed by the same provisions as those contained in Article 12 of the Madrid (Stockholm) Agreement, provided that any reference to Article 8 of the said Agreement shall be deemed to be a reference to Article 8 of this Protocol. Furthermore, for the purposes of Article 12(6)(b) of the said Agreement, Contracting Organizations shall, subject to a unanimous decision to the contrary by the Assembly, be considered to belong to contribution class I (one) under the Paris Convention for the Protection of Industrial Property.

Article 13

Amendment of Certain Articles of the Protocol

(1) Proposals for the amendment of Articles 10, 11, 12, and the present Article, may be initiated by any Contracting Party, or by the Director General. Such proposals shall be communicated by the Director General to the Contracting Parties at least six months in advance of their consideration by the Assembly.

(2) Amendments to the Articles referred to in paragraph (1) shall be adopted by the Assembly. Adoption shall require three-fourths of the votes cast, provided that any amendment to Article 10, and to the present paragraph, shall require four-fifths of the votes cast.

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(3) Any amendment to the Articles referred to in paragraph (1) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of those States and intergovernmental organizations which, at the time the amendment was adopted, were members of the Assembly and had the right to vote on the amendment. Any amendment to the said Articles thus accepted shall bind all the States and intergovernmental organizations which are Contracting Parties at the time the amendment enters into force, or which become Contracting Parties at a subsequent date.

Article 14

Becoming Party to the Protocol; Entry into Force

(1) (a) Any State that is a party to the Paris Convention for the Protection of Industrial Property may become party to this Protocol.

(b) Furthermore, any intergovernmental organization may also become party to this Protocol where the following conditions are fulfilled:

(i) at least one of the member States of that organization is a party to the Paris Convention for the Protection of Industrial Property;

(ii) that organization has a regional Office for the purposes of registering marks with effect in the territory of the organization, provided that such Office is not the subject of a notification under Article 9quater.

(2) Any State or organization referred to in paragraph (1) may sign this Protocol. Any such State or organization may, if it has signed this Protocol, deposit an instrument of ratification, acceptance or approval of this Protocol or, if it has not signed this Protocol, deposit an instrument of accession to this Protocol.

(3) The instruments referred to in paragraph (2) shall be deposited with the Director General.

(4) (a) This Protocol shall enter into force three months after four instruments of ratification, acceptance, approval or accession have been deposited, provided that at least one of those instruments has been deposited by a country party to the Madrid (Stockholm) Agreement and at least one other of those instruments has been deposited by a State not party to the Madrid (Stockholm) Agreement or by any of the organizations referred to in paragraph (1)(b).

(b) With respect to any other State or organization referred to in paragraph (1), this Protocol shall enter into force three months after the date on which its ratification, acceptance, approval or accession has been notified by the Director General.

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(5) Any State or organization referred to in paragraph (1) may, when depositing its instrument of ratification, acceptance or approval of, or accession to, this Protocol, declare that the protection resulting from any international registration effected under this Protocol before the date of entry into force of this Protocol with respect to it cannot be extended to it.

Article 15

Denunciation

(1) This Protocol shall remain in force without limitation as to time.

(2) Any Contracting Party may denounce this Protocol by notification addressed to the Director General.

(3) Denunciation shall take effect one year after the day on which the Director General has received the notification.

(4) The right of denunciation provided for by this Article shall not be exercised by any Contracting Party before the expiry of five years from the date upon which this Protocol entered into force with respect to that Contracting Party.

(5) (a) Where a mark is the subject of an international registration having effect in the denouncing State or intergovernmental organization at the date on which the denunciation becomes effective, the holder of such registration may file an application for the registration of the same mark with the Office of the denouncing State or intergovernmental organization, which shall be treated as if it had been filed on the date of the international registration according to Article 3(4) or on the date of recordal of the territorial extension according to Article 3ter(2) and, if the international registration enjoyed priority, enjoy the same priority, provided that

(i) such application is filed within two years from the date on which the denunciation became effective,

(ii) the goods and services listed in the application are in fact covered by the list of goods and services contained in the international registration in respect of the denouncing State or intergovernmental organization, and

(iii) such application complies with all the requirements of the applicable law, including the requirements concerning fees.

(b) The provisions of subparagraph (a) shall also apply in respect of any mark that is the subject of an international registration having effect in Contracting Parties other than the denouncing State or intergovernmental organization at the date on which denunciation becomes effective and whose holder, because of the denunciation, is no longer entitled to file international applications under Article 2(1).

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Article 16

Signature; Languages; Depositary Functions

(1) (a) This Protocol shall be signed in a single copy in the English, French and Spanish languages, and shall be deposited with the Director General when it ceases to be open for signature at Madrid. The texts in the three languages shall be equally authentic.

(b) Official texts of this Protocol shall be established by the Director General, after consultation with the interested governments and organizations, in the Arabic, Chinese, German, Italian, Japanese, Portuguese and Russian languages, and in such other languages as the Assembly may designate.

(2) This Protocol shall remain open for signature at Madrid until December 31, 1989.

(3) The Director General shall transmit two copies, certified by the Government of Spain, of the signed texts of this Protocol to all States and intergovernmental organizations that may become party to this Protocol.

(4) The Director General shall register this Protocol with the Secretariat of the United Nations.

(5) The Director General shall notify all States and international organizations that may become or are party to this Protocol of signatures, deposits of instruments of ratification, acceptance, approval or accession, the entry into force of this Protocol and any amendment thereto, any notification of denunciation and any declaration provided for in this Protocol.

∗ Interpretative statement adopted by the Assembly of the Madrid Union:

“Article 5(2)(e) of the Protocol is understood as allowing the Assembly to keep under review the operation of the system established by subparagraphs (a) to (d), it being also understood that any modification of those provisions shall require a unanimous decision of the Assembly.”